I**  lUPUIIIIIIIIIiiimiii 


THE 


SUPREME  COURT  OF  TEXAS 


V  T 1 1 


aNSTITl|riONAL!TY 


CONS€EEPT    LAWS, 

OPINIONS  OF 

ASSOCIATE  JUST;  I      iOORE  AND  BELL 


CHIEF  JUSTICE  WHEELER. 


HOUSTON, 
TELEGRAPH    BOOK  AND  JOB  ESTABLISHMENT. 
1863. 


RKCOBD  OF  THE  CASE. 

Ezptrte  Frank  H.  Coapland  en  Habeas  Corpus, 
before  the  Hon.  R.  T.  Wheeler,  Chief  Justice 
of  the  State  of  Texas. 

Be  it' remembered  that   the  following  proceedings 
were  had  la  the  sbjve  nann-d  case. 


State  of  lexas,  Couidy  of  Trivia, 
To  Hon.  Royal  T.  Wheeler 


":} 


Chief  Justice  of  the  State  of  Texas. 
The  petition  of  Frank  H.  Coaplaud,  a  citizen  of 
said  county  of  Travis,  respectful  y  represents,  that 
lie  is  illegally  restrained  of  his  liberty  upcaCdn 
Creek  in  said  county,  by  R.  T.  P.  Allen,  and  as  he  be- 
■  lieves  without  any  order  or  process  whatever,  or 
any  color  oi  either ;  end  certainly  i'any  exist,  a  copy 
cannot  be  obtained.  F.  H.  COAPLAN  D. 

George  W.  Paschal,  John  Hancock,    \ 
Attorneys  for  Applicant.  ) 
And  the  said  Frank  II.  CoapldQ'J, "being  duly  sworn, 
on  oath  sijs,  that  the  allegations  of  the  above  peti- 
tion are  true,  accordi:  g  to  the  belief  of  the  peiition- 
er.  F.  II.  LOaPLAND. 

Subscribed  and  sworn  to  before  me  this  IGth  day  of 
Ju'y.A.B.,  18  KferEIi.GP.AY, 

Chief  Justice  Travis  Coi 
The  State  of  Texas,  Travis  Ccn 

The  State  of  Texas  to  2i.  T.  P.  Allen,  greeting'.: 
You  are  hereby  commanded  that  the  bo  t.\'of  Fr  n\ 
E.  Coapland,  v. bich  is  alleged, in  the  petition  oi  the 
said  Coapland  to  me  addressed,  'is  illegally  restrained 
liberty  upon  Onion   Creek  in  said  county,  by 
E.  T.  P.  Allen,  and  as  he  believes  without  any 
or  process   whatever,  or  any  col  r  cf  elthor,"  you 
have  before  the  undersigned,  Chief, Justice  of  the 
Supreme  Court  of  saidS:ate,  at  the  Supieme 
room  in  the  capital  of  "said  State,  on  the  morrow  of 
the  19th  inst.,  at  10  o'clock.  A.  si.,  to  receive  md 
abide  what  shall  be  considered  concerning  htm  in 
ihiibeha'f.    Herein  f  il  not,  and  make  due  return 
nereojf.wi'.h .the  cause  of  the  taking  and  d  ta 

s  id  FrankH.  Co.plsnd.    Given  under  my' 
hand  this  lS.h  day  of  Julv. 

.       R.  T.  WII.KELER, 
Chief  Jusjtic,  ourt. 

Return.— Comes  R.  T.  p.  Allen  in  obedience  to 
the  command  of  the  writ  of  habeas  corpus  served 
upon  him  and  makes  return  thereto  as  follows  : 

On  the  23th  day  of  Jane,  18G2, 1'received  &n  or- 
der from  R.  JTownes,  Provost  Marshal  of  Travis 
county,  a  copy  of  which  is  hereto  attached,  marked 
"A,"  commanding  me  to  receive  the  said  Frank 
Coapland,  and  hare  him  eocurely  imprisoned 
within  (his)  my  lines.  Said  copy  certified  to  by  the 
Adjutant  of  my  Regiment,  the  original  having 
been  lost,  is  asked  to  be  takeB  as  part  of  this  re- 
turn. In  obedience  to  said  order,  I  detained  the 
said  Frank  Coapland  as  a  prisoner  within  the 
lines  of  the  Regiment  of  Confederate  States  sol- 
diers, of  which  I  am  Colonel  at  Camp  Terry  in 
Travis  county,  until  the  14th  or  15th  day  of  July, 
inst.,  at  which  time  under  authority  from  Colonel 
JohnS.  Ford,  Superintendent  of  Conscripts  of 
the  State  of  Texas,  I  enrolled  the  said  Frank 
Coapland  as  a  conscript  under  the  act  of  the  Con- 
federate Congress,  entitled  "an  act  to  further  pro- 
vide for  the  public  defence,"  and  discharged  him 
from  imprisonment  or  custody. 

The  discharge  of  the  said  Coapland  was  in  obe- 
dience to  iDstructions  from  R.  J.Townea,  Protest 


Marshal.  The,  said  Coapland  was  enrolled  as 
aforesaid  by  me  with  his  consent,  and  at  his  re- 
quest was  attached  to  company  UB"  of  my  regi- 
ment, commanded  by  Capt.  Joe  Z.  Miller.  Since 
the  date  of  said  enrollment  I  have  h\d  and  havt 
now  no  other  control,  possession  or  powers  over 
said  Coapland,  than  such  as  rests  in  me  as  a  Colo- 
nel in  the  Provisional  Army  of  the  Confederate 
States,  over  a  soldier  in  said  army  under  my  com- 
mand and  attached  to  my  regiment. 

It  is  proper  to  say  that  at  the  time  of  receiving 
the  order,  a  copy  of  which  is  hereto  attached,  I 
was  leaving  Camp  Terry  on  special  service,  and 
Capt.  Joe  Z.  Miller,  ofOom4->auy"B"  was  in  com- 
mand of  the  camp, to  whom  I  directe'd  the  order 
and  the  prisoner  to  be  delivered  until  my  return. 

On  Friday  morning  the  18th  inst.,  I  gave  the 
said  Coapland  leave  of  absence  to  come  to  Aus- 
tin und  I  have  not  seen  him  since,  and  therefore 
have  him  not  before  the  Court. 

R.  T.  P.  ALLEN, 
Col.  Comd'g  Reg't  Texas  Infantry. 

Sworn  and  subscribed  to  Were  me  this  %  I 
of  Juty  18G2. 

R.  T.  WHEELER, 
Chief  Justice  Supreme  Court. 

Office  of  Provost  Marshal,    ) 
Travis  County,  June  25, 1862.) 
To  Lieut.  C.  Nash: 

You  wi;l  detail  a  sufficient  guard  from  your  com- 
mand, put  a  proper  officer  over  them,  and  conduct, 
the  prisoner,  Frank  Coapland,  to  Camp  Terrv,and 
deliver  him  to  Col.  R.  T.  P.  Allen. 

Col.  Allen  will  reeeive  the  prisoner  and  have 
him  securely  imprisoned  within  his  lines,  not  per- 
mitting him  to  communicate  with  any  person  of 
doubtful  or  suspicious  character,  and  retain  him 
until  further  orders.    He  has  been  arrested  upon  a 
charge  of  disloyalty.        . 
Given  under  my- hand  the  day  above  written. 
R.J.TOWNES. 
Provost  Marshal  of  Travis  County. 
I  certify  that  the  above  is  a  true  copy  of  a  letter 
handed  me  for  record  by  Capt.  J.  Z  Miller,  com- 
pany "  B,"  then  in  command  of  Camp  Terry,  the 
original  having  been  lost  from  my  flies. 

THOMAS  M,  HUNT,  Adj't 
Col.  Allen'*  Reg't,  Texas  Vol.  Infantry. 

la  Chambers  before  the  Hon.  R.  T.  Wheeler, 
Chief  Justice  of  the  State  of  Texas,  Frank  Coap- 
land, Exparte,  on  application  for  Habeas  drpus. 
Be  it  remembered  that  on  the  hearing  of  this  ap- 
plication, the  applicant  by  his  counsel,  on  the 
coming  in  of  the  return  of  Col.  R.T.  P.  Allen,  ob- 
jected to  said  return  i 

1st.  Because  said  Allen  does  not  bring  said  ap- 
plicant before  the  Court  as  he  is  directed  to  do. 

2d.  Because  said  return  does  not  state  for  what 
alleged  offence  said  applicant  was  arrested  and 
held  in  custody. 

3d.  Because  said  return  fails  to  show  any  au- 
thority for  the  alleged  conscription  of  said  appli- 
cant by  respondent. 

4'h.  Because  said  alleged  conscription  is  null 
and  void  ;  the  law  referred  to  in  said  return  under 


and  ia  virtue  of  which  said  conscription  it  stated 
to  hire  been  aaade,  is  in  contravention  of  the  Con- 
stitution of  the  Confederate  States  of  America,  tad 
also  the  Constitution  of  the  State  of  Texas. 

Wherefore  they  pray  a  fuller  return. 

PASCHAL  &  HANCOCK, 

Filed,  July  21, 186*.  For  Coapland. 

Erpartr,  Frank  H  Coapland, 

ORPER  OF  THE  CHIF.F  JUiWCS. 

Belt  remembered,  that  on  this  21st  day  of  Ju  y, 
'862.  Col.  R.  T.  P.  Al  en  made  bis  retu.n  to  t!ie  writ 
c  f  Habeas  Corpus/issued  heretofore  on.the  18:h  Int. 
and  thereupon  the  cou  <sel  fur  the  complainant  ob- 
jected to  the  sufficiency  of  the  return,  whi'  ' 
ion  was  sustained  in  so  fir  as  the  ratum  did  • 
tufllcient  cause  for  the  failure  to  brln^;  the  Co 

aiuant  before  the  Court,  &'.<!   did  not  show  tS 
mature  of  the  authority  st 
;unoftue  complainant  a?  a  c  nscript.    Ai 
by  consent  the  said   A  len  w.-s  allow? 
Monday,  the  20th  ln*t ,  to  comph  te  his  return 
the  Court  direct  i 

■  thed-ite  of  the  h'  .>  by  instrjK 

t  ons  ol  the  in    r  oc- 

- 
them  a  parte 
Court  a -Mourned  u 

LER, ' 

■land. 

AMSSDED  RJ 

.  made  on  the 

1st.    - 
preset) 

2  1.  U 
ingofi 
as  stated  in  hi 

tO  ObL: 

.  to  enroll  the 
with  the.JLirshal,  h 
■  l'ord.thetfup1 
tions  ai.d  authori  y  to  make  the  enroJlme 
upon  the  Pxovo#t  Marshal  d 
charge  the  said  Coapland  from  custody.  J 
c  imp  abo.ul  1  or  2  o'clock,  and,  after  dining,  I  senBfc 
Coapland  tocorueto  my  quarter.-.  1  in  farmed  him  SI 
1  had  directions  to  coi.  s .  ript  h  ira .    He  re 
well.".  I  asked  him  to  hold  up  Lis  band,  admini- 
the  oath  to  him, and  requested  bitn  to  select  the 
p.my  to  which  he  would   be  attached.    He  si 
company  "A."  which,  being  found  to  hive  the  maxi- 
mum number,  could  not  receive  him.    Chi  t'  e  18th 
two  days  after,  he  sel.cted  company  "B,"  and  ws  at- 
tached to  the  company.    Since  then,  Ciapland  has 
been  the  greater  part  of  the  time  oa  "leave  ol  a 
sence." 

The  said  Coapland  is  now  ucdermv  command  as  a 
Confederate  fctates  soldier,  a  membtr  of  company 
B"  by  his  own  selection,  of  the  regiment  of  which  I 
am  Colonel.  I  am  and  have  been  since  the  camp 
was  establuhe  1  as  a  camp  of  instruction  in  com- 
mand of  the  camp  near  Austin,  known  as  'Camp 
Terry."  As  I  have  stated  above,  n>v  instructions 
from  the  Provost  Marshal  to  discharge  Coaoland  and 
the  authority  to  enroll  him  as  a  conscript  'were'ver- 
bal  and  not  written.  li.  T.  P\  ALLEN 

Col.  conid'g  Reg't  Texas  Vol.  Infantr'y. 
Sworn  and  euoscrlled  to  before  me,  this  29  h  July 
1862.  JAMES  JOHNSON,      ' 

Clerk  Supreme  Court. 

Exparte,  Frank  Coapland  on  application  for  Habeas 

Corpus. 

Beit  remembered  that  en  the  coming   in  of  the 
amended  return  of  the  respondent,  the  Hon.  Chkf 


J  istlce  on  his  ow  a  motion,  al  egtug  that  there  t«  »« 
apparent  discrepancy  b etween  trie  j  etUfon,  as  to  the 
ignorance  of  th?  applicant  as  to  the  cause  or  ground* 
of  his  detention,  end  the  stateuie  tsof  the  retur» 
that  said  app'lcint  was  de'ained  under  an  order  from 
R  J.Townes.  PiovostMarxhal.canedeniaidapolcant 
to  explain  sail  discrepancy,  by  statement  not  undf' 
oat  i,  and  »o  say  if  said  application  was  mad*  hv  htm 
vo'untari'y  of  his  ow  o  accord,  and  un  lerstandiur  tha 
contents  of  said  petition,  and  if  said  i;  p  iealio-i  w« 
made  by  his  authority,  to  whi. h  proceeding  the  at 
torneys  for  api      i  *       •  " 

l>t.  Because  the  app  rent  discrepancy,  ff  m.ntera! 
fothewantsoftneapplicatio   ,  is  an  l^ue  of  fa ■'• 
to  be  determined  by  testimony   of  other  Ch ai 
t'lnn  statements  of  .other  applicant  or  r   • 

2  1,  Because  this 
applicant  to  cii 

3.1,  Because 
plicant 

:  ty  and  to   a 

4th,  Because  said  p 

1  lotions, 

--1   we? 


i    g  the  authority, 
n  rt  compel!  d  ti 


Frank  M.  Cvaplmd,  Erpartc. 

The  applicant  here  excepts  to  the  retura  and 
amended  return  oT  the  said  R.  T.  P.  Allen,  and 
as  matter  of  law,  he  says  : 

1st.  That  t 
is  and-;  -said 

R   J   Townes,asi'r  no  legal  or 

24.  That,  the 
face  shows  no 

3d,  That  I 

4th.  That  the  return  shows  U  a  p  dii- 

cbarged  from  said  u  rehe    ■ ' 

is  entitled  ton's  discharge. 

5:h.  And  that,  as  for  the  conscription,  the  retura 
ehovysupon  its  face  that  il  while  he  was 

under  said  illegal  imprisonment. 

Gih.  That  said  preten  "ed  In,  under  whic 
conscript  proce*.  ding  was  had,  is  unconstitutional 
and  void,  and  therefore  the  applicant  jr'ay  Mis  dis- 
charge upon  the  face  of  lh>?  retura. 

JOHN  HANCC 
G.  W.  PASCHAL. 

And  as  to  the  return  upon  i;s  merits,  the  appli- 
cant takes  issue  with  the  etatement.thit  this  appli- 
cant voluntarily  took  the  oath  as  a  conscript,  and 
he  proposes  to  prove  that  wi.hfn  half  an  hour  af- 
ter he  made  affidavit  to  a  petition  for  a  Habeas 
Corpus,  he  was  carried  before  the  said  Col.  RT. 
P.Allen,  oy  the  officer  .of  the  day,  under  guard, 
and  that  the  Baid  Allen  thousand  there  informed 
him,  that  ho  (the  said  Allen)  was  instructed  to 
conscript. the  applicant.  And  the  applicant  was 
not  informed  that  he  had  any  choice  as  to  whether 
he  might  decline  taking  the  cath  or  not.  And  he 
proposes  to  prove  that  the  verbal  order  from  Col. 
Ford  (which  order  he  insists  was  contrary  to  law 
and  void,)  was  accompanied  by  the  condition  that 
the  applicant  should  be  left  to  his  voluntary  choice. 
Aod  he  further  proposes  to  p-o.ve  that  the  author!- 
tiss  who  held  him  In  corfinemeut  and  caused  his  Il- 
legal detention,  had  often   effered  hi<n  the   altetbi- 


n  ihe  army  or  being  sent  to  San  < 
A-.l  nio.  fey  triil  bvoresome  military  tribunal,  for 
seme  pretended  offence,  the  character  of  •which  was 
r,6t  stated  10  h-.m,  and  that  he  hud  already  dealined, 
and  the  ei  ne  c>uid  not  voluntarily  n-ovoe  a  con- 
-.<:•■!. i.  dd  return.    He  fui tin r proposes 

erenoe  to  the  proposition  to 
I  e    i'  trported  to  speak 

rol  the 

A  nd  I . 

led. 
PASCHALj 

'  For  applicant, 

Frsnk  II.  CaipUtid,  Ecpartt. 

B?  H 

d  d  return  of 

Col.  U.  •>  of  the  written  issue  of 

lid   app»  :ant  pr  >posed  to 

tour  before  the  oath 
was  d : 

lister  the  conscript  oath 
that  Col.  Ford  instructed  Alien 

Licant  that   he  wis  at  liberty  to 
h  fact   was  not  comrnuui- 

.   t,  but   he   wi<s  brought  beinre 

'  olJiers    and  told  th.it  he. 

Alien,  w  conscript  him— :  bus  leaving 

hlmn>  forcing  him  under  duress  of  irri- 

prl  on  i  posed  to  prove  the  othjr 

I 
Mir.-h.il.  R  J  ':  iwnes,  had SMI  tlkat. there  was 
no  ev;.  .  -e  against  toe 

The  applicant  also  proposed   to  prove'  that  he  was 
originally  arrested  without  any  lawful  warrant  or 
antherity,  a»i  wltnoutany  clurge  er  s  eciiimtionr,   . 
©fa.v.'  e.  and  without  an?  charge   au- 

thorized by  t  i  I  n  and  laws  of  the  coun- 

try. 

The  applicant  aho.by  counsel. proposed  tbat  kis 
counsel  should  argue  against  the  sufficiency  of  the 
return  an  I  proofs  to  detain  him  longer  in  custody, 
and  against  the  constitutionality  of  the  declara- 
tion of  martial  law,  a?  applied  to  citizens  not  ia 
camp  or  connected  with  the  service,  and  against 
the  exercise  of  authority  by  R.  J.  Townes,  the 
Provost  Marshal  in  this  cas"e ;  also,  to  arguo 
against  the  constitutionality  of  the  so-called  con- 
script law.  But  the  Court  declined  to  hear  the- 
evide)  .  -lying  that  in  his  opinion,  upon 

the  facts  already  shown, the  evidence  wottld  be 
wholly  immaterial,  and  that  as  to  martial  i  I 
mind  was  already  made  up  as  to  its  constitution- 
ality, and  in  at  he  would  not  hear  proof  of  irregu- 
larities ,  and  that  the  same  was  his  opinion  in  regard 
to  the  conscript  law,  and  thut,he  did  not  think  it 
would  be  profitable  to  hear  argument  under  the 
circumstances.  To  all  of  which  rulings,  as  well 
as  the  first  ruling  refusing  to  require  Col.  Allen  to 
set  forth,  if  he  knew,  the  original  cause  of  caption, 
the  applicant,  by  attorney,  excepted— and  now  to 
save  the  several  exceptions,  the  Court  seals  this 
bill,  and  orders  it  to  bo  made  &  part  of  the  record. 
R.T.WIIEELBS,  IL.  S.] 

Chief  Justice,  Supreme  Court. 

Order  ?f  discharge  Exparte—Frtnh  II.  Coapland, 

on  Habeas  Corput. 

Be  It  remembered  that  on  this,  29th  day  of  Jaly, 
18G2,on  the  hearing  of  the  above  entitled  cause 
before  the  undersigned,  R.  T.  Wheeler,  Chief  Jus- 
tice, it  was  considered  and  adjudged  that  the  pro- 
ceedings be  dismissed,  at  the  cost  of  the  applicant, 
and  that  the  prisoner  be  remanded  into  the  ensto 
dy  of  the  respondent,  Col.  R.  T.P.Allen;  from 


which  jadgrnentihe  *ai»I  applicant  apoeals: 
R.  T.  WHK1LER, 
Chief  Jestice,  SHpreeee  Coart 

Frank  H.  Coapla>i£,Kcparle. 
The  applicant  prop  )ses  the  folio*  in^  stat-itneat  o.f 
■ 
bafore  the  Court  were  l?t,  Tae 
md  amended  return  of  Colonel 
■  lenient  of  the  apnJcant, 
•t,  that  he,  Co  upland,  had  twice 
lltoa,  to  hare 
iade  for  his  discharge,  tint  he  read  the 
id  heli -vod  It. to  be 
- 

>r  the  applicant,  by 

the  affidavit 

i  -before  he  was  oall- 

:   a?  a  conscript.    And  in  an- 

satd  Co  .plane!  stated 

as  iwenty-t years  oW  on  the  twentyrfifth 

s  of  Co -inland 
should  Ufe  consiiered  as  evidence  T  tils  was  all  the 
uvklencelr-  the;case.-~ 29th  July, 

[N  HANCOCK,       n    *  -, 
I    W.  PASCHAL,    lL        ' 
For  applicant. 
N.  G.  SHELLY, 
Attorney  General. 
I  iiAve  examined  the  above  statement  of  fact  ,  and 
certify  that  it  is  correct.    It  1 ;  acorlimgiy  approved. 
K.T.  WHBBLBR,    [L.  «.] 
Chi  .'f  .lustiee  Suprem*  Court. 
I  certify  ih-it  the  foregoing  Ha  correct  trar.g~:crlpt 
.:ece*«ing8  had  before  me  la  the  within  em  ti- 
ring c&ffte.  B.T.  WHBBLBR, 
Ghlaf  Jastlce  leprem*  Coart 


Opinion  of  Associate  Justice  Moore. 

Frank  H.C>apj, and,  exparte,  \ 
(»n  apoi'catlon  for  Habeas  Co-pus.     J 
Appeal  fyom  judgmentof  Chief  Justice  Wheeler  in 

and)  applied  to  the  Chief  Justice 
on  tin  62,  in  vacation"; for    writ  of  Ha- 

beas', e  th'it  he  was  illegally  restrained 

v  K.T.  P.  Alien,  In  Travis  county,  as  he 
hout  any  orderor  process  whatever,  or 
Tiie  writ  issued  and  Allen  made 
glnally  in  his 
it.  J.  Townes,  Provost  Marshal 
the  service  of  th« 
i   the  reUtor  had  been  enrolled  as  asol 
rate  States, asa  conscript,  under 
he  Confe  !erate  States,  e:i- 
•ther  provide  for  the  public  de 
'!;s  company,  been  attach- 
Larged  from  his  original  de- 
jerviee   oftliewritwasduly.de- 
1  iier  of  the  Confederate  Stites,  belong- 
ing to  a  regiment  of  which   respondent  was  Colonel. 
On  the  hearing    the  relator  was  remanded  into  the 
custody  of  the  respondent.    From  this. Judgment  the 
•  pixjsecur.es  this  appeal. 
The  first  question  for  our   decision  arises  upon  a 
motion  by  tue  Attorney  General,  who  appears  on  be- 
half of  the  respondent   Alien,  that  the  application 
should  f>r  the  present  bo  continued,  because,  as  he 
alleges,  the   relator  since  he  was  remanded  by  the 
judgment  of  the  Chief  Justice,  into  the  custody  of 
the  respondent  as  a  soldier  in  the  regiment  of  which 
he  was  in  command,  has  deserted  and  is  no  longer  in 
the  custody  or  under  thecontrolof  the  respondent. 
This  motion  is  founded  on  an  affidavit  of  a  Lieuten- 
ant belonging  to  said  regiment,  from  which  It  ap- 
pears that  the  relator,  together  with  other  members 
ofsald  regiment,  were. after  his  return  to  It,  furlough- 
ed  until  the  15th  of  September  last,  at  the  expiration 
of  which  time  he  was  ordered  to  report  for  duty  at 
Tyler,  Smith  county.  Texas,  where  thereglm«nt  w»» 


acdered  torendesveu-;  but  thit  up   to  the  85th  cf 
September,  when  affiant  left  came, he  had  notloteed 
the  regiment,  or  been  heard  of  by  him. 
■  This  motion  is  urged  upon  two  dl^t  r>f  t   ?ronn>\-: 
trst,  that  the  Court  has  uo  Jurisdiction  on  the  appli- 
cation, it  I  be  relator  h*s  escaped  from  the  custody  to 
•  "which    he  was  remanded   by    the  Judgment  from 
which  he  appeals:  secondly,  if  the  Court  has   lurii- 
dicllon,  it  wi:l  not  act  upon  his  application  v.  Idle  he 
Isatlarge.    There  1s  no  doubt   that  in  anfw  er  to  the 
writ,  the  respondent  must  produce  U. 
prisoner,  alleged  to  be  Illegally  detained,  if  In  his  en, - 
tody,  or  under  his  control,  at  the  service  of  the  writ 
anless  excuse  1  from  so  doing  by   the  ciivumnaccss 
to  Art.  Ik),  Code  Crim,  Proc'd..  and  thul  a   i 
the  wilt  not  accompanied  ly  the  bodv,  wlil  le  scai.- 
ned  with  great  caution   (Ilurd  en  Habeas 
244,)  and  although  this  Is  to  prevent  evasion-,  of  the 
writ,  an  1   to  secure    the   liteity  cf    tie    clMcn, 
ret  If  the  parly  has  letn  released  from  cust 
Tlous  to  theseivlce  of  the  writ,  its  object  MiMnr. 
pos3ha3  been  accomplished,  and  the  C.urt  wUfiake 
no  order  on  the  snbjec'.  (Conimonwca'th  vs.  OBnd- 
l«lBll.MoSsg3-U.    P.  Davis  5,  Or.  C.  C.  Repo-ti 
W2.)    '1  he  only  object  of  the  writ   Is  to  re  i.  ve'the 
party  defamed  irom  the  Hle.'al  restraint.  If  tLMJic-  ' 
oompllshed,  before  the  Jurisdiction  or  the  CoiMat-' 
laches  by  the  service  of  the  writ,  there  is  nattlne  • 
ppon  which  it  can  attach.  It  is  not  the  olject  or  h.- 
tantionof  the  Court  to  punish   the  r. 
afford  the  party  redress  for  Sis  illegrl  detention  bu 
the  quest  ion  occui  les  a-  different  attitude  rftlNhe  , 
jurisdiction  of  the  Court  has  oi  ce  attached     i 
notthen  he  defeated  by  the  wrongful  act  of  either  of 
the  parties.    It  is  expresfly  nrovided  forty  the  Cone 
of  Criminal  prucedure(  Art.  76?)  that  upon  thMear-  > 
tas  of  an  appeal  in  cases  of  Hahe; a  Corpus,  tJT  de 
fendant,  (who  undoubtedly  must  be  understood**  be 
the  prisoner  or  party  detained,)  need  not  hi  person- 
ally present.  ^ 

The  second  ground  of  the  motion,  we  think,  as- 
a  question  of  practice,  is  well  taken,  if  the  Da  of 
thla  caso  called  for  its  application  ;  and  were  it 
cot,  also,  that  from  the  character  of  the  case,  we 
taink  the  public  interest  will  be  better  a  ubierved 
by  hearirjg  the  appeal  than  by  its  continXpce.  v 
The  rulo  of  the  Court  not  to  hear  appeals  in  crim  • 
toal  causes  when  the  defendant  has  escaped,  to 
which  this  case  is  claimed  to  be  analogous, being 
Merely  a  matter  of  practice,  depending  in  Us  a;, 
plication  to  particular  cases,  upon  t ho  discretion 
of  the  Court;  and  as  the  affidavit  relied  upon  does 
not  show,  conclusively,  that  the  relator  has  cs- 
oaped  from  the  custody  to  which  he  was  remitted, 
and  may  not,  after  but  a  temporary  delay,  have 
joined  his  regiment,  the  motion  for  a  continuance 
will  be  overruled. 

The  questions  arising  upou  the  merits  in  thin 
application,  hare  been  argued  with  great  interest 
and  zeal.  Several  of  the  points,  however,  made 
by  the  counsel  for  the  relator,  and  most  elabor- 
ately discussed,  can  have  no  influence  in  the  de- 
cision of  the  case,  as  presented  by  the  apj  eal,  an  d 
doubtless  had  none  in  its  determination  by  the 
Chief  Justice  ;  though  out  of  abundant  c  ution,  he 
permitted  relator's  counsel  to  save  by  bills  of  ex- 
emption every  question  suggested  by  them  as  hav- 
ing any  possible  bearing  upon  the 'rights  of  their 
client.  As  we  have  already  said,  a  patty's  right 
to  the  writ  does  not  depend  upon  the  legality  or 
^legality  of  his  original  caption,  but  upon  the 
legality  or  illegality  of  his  present  detention 
(Daws' case,  18  Penn.,  37  ;  Rex.  vs.  Gordon,  J 
Earn  &  Aid.  572;  Hurdon  Habeas  Corpu.«,  855-6.5 
the  relator  was  not,  when  the  writ  was  served, 
detains  by  virtue  of  the  order  of  the  Provost 
Marshal,  by  whose  order  he  seems  Mist  to  hare 
been  arrested.    >Ve  will  not,  therefore,  coi  same 


time  by  a  diECUseicn  of  the  questions  ibat  have 
been  ra.std  as  to  the  right  or  authority  of  a  mili- 
tary officer,  in  time  of  war.  to  declare  raanial  law, 
or  the  effect  of  such  declaration  wben  made,  or 
upon  whom  martial  law,  when  declared,  cftn  op- 
erate, or  the  n.ture  and  character  of  such  law 
nor  will  it  beat  all  necessary  that  we  should  en- 
quire into  the  regularity  of  the  proceedings  of  the 
enrolling  officer,  by  whom  relator  was  enrolled  as 
a  soldier,  for  if  tie  is  subject  to  conscription,  this 
Court  is  hot  the  appropriate  tribunal  for  correct- 
ing the  errors,  if  any,  into  which  those  officers  may 
have  fallen  in  discharge  of  their  appropriate  mili- 
tary duties,  but  his  application  for  redress  must  be 
made  lo  their  super!  r  officers  or  other  proper 
military  authorities.- (Art.  756  code  criminal  pro- 
cedure.) 

The  only  question  in  the  case  for  our  consid  ra- 
tion, ar.d  upon  which  the  determination  of  the  cass 
must  turn,  is,  as  to  the  legality  of  ihe  relator's  de- 
tention as  a  soldier  in  the  army  of  the  Confede- 
rate States,  and  this  depends  entirely  upon  the 
question  whether  the  "Act  to  further  piovide  for 
the  public  defences,"  commonly  Known  as  the 
''Conscript  Laws,"  is  constitutional.  We  add  rets 
ourselves  to  the  consideration  of  this  question, 
with  a  full  appreciation  of  ite  magnitude  and  im- 
portance in  respect  "both  to  public  interest  and 
private  rights,  the  liberty  of  the  citizen  and  the 
power  of  the  Government. 

Tbe  objections  that  have  beer,  made  to  ihe  con 
stit'jtionality  of  the  law,  are  frequently  wgue.and 
at  times  rather  contradictory,  but  whi  n  analysed 
resolve  themselves  into  one  or  the  other  oi  the  fol- 
lowing general  objections  :  1st.  That  it  violates 
the  liberty  of  the  citizen.  2d.  That  it  is  in  dero- 
gation of  the  assumed  rights  of  the  States;  Eoth 
objections,  however,  are  to  be  considered  in  sub- 
ordination tothe  general  proposition,  that  it  is  fa- 
cumbenl  upon  those  who  maintain  its  constitution- 
ality, as  is  the  c use  with  every  other  act  of  the 
Confederate  Gc  n  rnment,  to  show  that  the  author- 
i^  assumed  by  the  Confederate  States  is  sanction- 
Pbyan  expressly  delegated  power,  or  that  the 
act  itself  is  necessary  and  proper  for  the  carrying 
into  effect  an  expressly  delegated  power. 

In  determining,  however,  the  constitutionality 
of  a  law  passed  by  the  Confederate  Government, 
it  is  always  important  to  consider  whether  the  act 
in  question  is  done  in  the  exercise  of  a  power  ex- 
pressly granted,  or  under  the  impiied  powers  gran- 
ted by  the  18th  paragraph  of  the  Sth  section  of  the 
1st  Article  of  the  Comtitutior.  If  it  la  the  first, 
then  th'j  Confederate  Government  may  use  their 
discretion,  In  the  mode  ami  manner  of  Us  exer- 
cise, unless  it  is  limited  or  restrained  in  so  doing 
by  some  other  express  provision,  or  clear  and 
necessary  implication  ;  ar_d  the  burthen  of  show- 
ing  this  is  upon  those  who  assert  the  limitation.— 
J  he  authority  given  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execu- 
tion, the  expressly  granted  powers,  were  not  in- 
tended merely  to  authorise  Congress  to  exerciss 
by  legislation,  the  powers  previously  granted,  and 
its  right  to  do  so  depends  in  no  manner  upon  this 
clause,  but  it  is  itself  a  direct  grantof  all  such  sub- 
sidiary and  incidental  powers  as  shall  be  "  neces- 
sary and  proper"  to  carry  into  effect  the  previous- 
ly granted  powers.  And,  it  is  adrahted,  that  when 
authority,  to  do  an  act  is  claimed  under  it,  it  is  in  - 
cumbeut  upon  those  who  maintain  it,  to  show,  not 
merely  that  it  is  "  a  necesiary*'  law,  but  that  it  i« 
"a  necessary  and  proper"  one  for  carrying  into 


effect  the  expreasly  gremtrd  power. 

It  cannot  for  a  moment  be  questioned,  If  there 
are  no  express  grants  of  power  to  do  bo,  that  the 
right  of  the  Government  of  the  Confederate  States 
to  raise  and  support  armies  could  be  susained 
under  the  general  granting  clause  of  the  Consti- 
tution to  which  we  have  referred.  And  we  think 
it  equally  clear  that  the  law. in  question  is  in  direct 
accordance  with  it  even  when  tested  by  thelstrin- 
gent  rule  of  construction  that  we  have  just  recog- 
nized. The  power,  however,  to  raise  and  support 
armies,  it  expressly  granted  by  the  Constitution, 
to  the  Congress  of  the  Confederate  States.  Is  there, 
then,  any  limitation  by  other  express  powers,  or 
necessary  implications  restraining  its  acts  to  the 
manner  of  doing  this?  It  has  never  been  con- 
tended that  there  is  any  express  provision  to  this 
effect :  and  if  there  is  any  such  necessary  implica- 
tion, it  mustbs  as  we  have  said,  by  reason  of  the 
effect  of  the  laws  upon  the  freedom  and  liberty  of 
the  citizen  or  the  political  rights  of  the  States. 

Does  this  law  violate  any  of  the  abstract  or  guar- 
fcntied  rights  of  the. citizen,  or  assume  over  him  a 
control  not  delegated  by  the  Constitution  ?  It  has 
notof  course  been  questioned,  that  the  power  to 
raise  an  army  may  be  exercised  by  Congress.  But 
ills  said  it  can  only  do  this  by  voluntary  enlist- 
ment, and  that  the  citizens  can  only  be  compelled 
to  do  compulsory  military  duty  as' militia  under 
the  15th  and  l«th  clauses  of  the  same  section  of  the 
Constitution  which  gives  to  Congress  the  power 
to  raise  armies. 

It  said  by  VatteJ  (p.  294)  that  the  public  authori- 
ty raises  soldiers,  distributes  them  into  different 
bodies,  under  the  command  of  Generals  and  other 
officers,  and  keeps  them  on  foot  as  long  as  it 
thinks  necessary,  and  ag  every  citizen  or  subject 
is  bound  to  serve  the  State,  the  sovereign  has  the 
right  to  enlist  whom  he  pleases.  But  he  ought  to 
choose  such  only  as  are  fit  for  war,  and  it  is  highly 
proper  that  he  should,  as  far  as  possible,  confine 
his  choice  to  volunteers  who  enlist  without  im- 
pulsion. No  person  is  naturally  exempt  Worn 
taking  up  arms  in  the  defence  of  the  State  ;  the 
obligation  of  every  member  of  society  is  the 
same.''  it  is  insisted,  however,  that  while  it  can* 
not  be  denied,  that  this  power  exists  under  mo- 
narchial  government?,  it  is  not  applicable  to  a  re- 
public. Its  language  imports  its  applicability 
alike  to  citizens  or  subjects,  and  this.must  heap- 
parent,  when  we  consider  that  the  abstract  rights 
of  every  nationality  oVer  the  inhabitants  of  which 
it  is  composed  are  the  same,  whatever  may  be 
its  social  compact  or  the  constitutional  functions 
through  which  it  exercises  its  powers.and  each  in- 
dividual can,  In  a  republic,  with  the  same  pro- 
priety as  under  a  monarchy,  be  required  toper- 
form  military  duty  without  his  consent,  if  the  de- 
mand is  made  by  a  proper  exercise  of  the  nation- 
al will.  Has,  then,  the  nationality  of  Texas  (we 
speak  of  it  as  an  independent  sovereign  communi- 
ty  6r  State)  conferred  the  power  of  doing  this 
upon  the  Confederate  States?  Kefering again  to 
V  attel  [p.  293]  we  find  it  sai  1 :  M  As  war  cannot  be 
carried  on  without  soldiers,  it  is  evident  that' who- 
ever has  the  right  of  soaking  war  has  also  natur- 
ally ti-at  of  raising  troops."  The  latter  there- 
fore belongs  likewise  to  the  sovereign,  and  is  one 
g>i  the  prerogatives  of  'majesty.  Every  citizen  is 
bound  to  serve  and  defend  the  State  as  far  as  he  is 
capable.  Society  cahnototherwise  be  maintained, 
and  this  concurrence  for  the  common  defence  is 
one  of  the  principal  objects  of   every  political 


association.  Every  man  capable  of  carrying 
arms  should  take  them  up  at  the  first  order  of  him 
who  has  the  power  of  making  war.  Again  He 
says ;  [p.  14]  *'  The  prince  derives  his  authority 
from  the  nation  ;  he  possesses  just  so  much  of  it 
as  they  have  thought  proper  to  entrust  him  witk* 
If  the  nation  has  plainly  and  simply  invented  him 
with  the  sovereignty,  without  limitation  or  dlviu 
sion,  he  Is  supposed  to  be  invested  with  all  the 
prerogatives,  without  which  the.  sovereign  com- 
mand or  authority  could  not  be  exercised  in  the 
manner  most  conducive  to  the  puolic  welfare. 
These  are  called  real  prerogatives,  or  the  preroga- 
tives of  majesty." 

The  extracts  show,  that  the  grant  of  the  power 
to  make  war,  carries  with  it  by  necessary  impli- 
cation, unless  expressly  withheld,  the  rigbt  to  de- 
mand compulsory  military  services  from  the  citi- 
zens. If  this  right  is  an  incident  of  the  preroga- 
tive of  making  war  in  a  monarchy  where  the  peo 
Ele  can  exercise  no  control  over  the  sovereign, 
ow  much  more  readily  should  we  conclude  that 
it. was  a  "necessary  and  proper"  implied  power 
with  us  where  the  war  making  power  tt 
given  directly  to  the  agents  of  the  people,  who 
can  only  be  supposed  to  act  under  their  directions,, 
and  to  speak  their  sentiments  even  if  there  had 
been  no  express  grant  of  power  given  to  Congress 
to  raise  and  support  armies. 

This  power  of  the  general  government  to  do  so, 
has  been  long  and  frequently  admitted  in  the  U. 
States,  tooth  by  standard  elementary  authors  and 
judicial  decisions.  [Hurd  on  habeas  corpus  8.] 
la  the  case  of  the  United  States  vs.  Bainbridge,  l 
Mas.  71,  it  is  recognised  as  authorizing  the  prac- 
tice established  by  the  government,  and  sanction- 
ed by  numerous  legislative  enactments  of  en- 
listing minors  in  the  navy  without  the  consent  of 
their  parents,  and  also  in  the  army  in  the  sama 
manner  when  the  wants  of  the  government  re- 
quired it.  It  was  discussed  and  recognized  while 
the  Constitution  of  the  United  States  was  before 
the  people  of  the  States  for  ratification,  at  which 
time  we  find  Mr.  Madison  saying  in  the  Federal- 
is!,  p.  187 .  "Is  the  power  0 f  declaring  war  neces- 
sary ?  No  man  will  answer  the  question  in  the 
negative.  It  would  be  superfluous,  therefore  to 
enter  into  a  proof  of  the  affirmative.  Is  the 
power  of  raising  armies'  and  equipping  fleets  ne  - 
.  cecsa'ry  1  This  is  involved  in  the  foregoing  pow;er. 
It  is  involved  in  the  power  of  self  defence.  But 
was  it  necessary  to  give  an  indefinite  power  of 
raising  troops  as  well  as  providing  fleets,  and 
maintaining  both  in  peace  as  well  as  in  war?— ■ 
With  What  color  of  propriety  could  the  force  no 
cessary  for  defence  be  limited  by  those  who  cannot 
limit  the  force  of  offence.Tfa  Federal  Constitution 
would  chain  the  ambition  or  set  bounds  to  the  ex- 
ertions of  other  nations,  then  indeed  might  it 
prudently  chain  the  discretion  of  its  own  govern- 
ment, atid  set  bounds  to  the  exertions  for  its  own 
eafety." 

Upon  the  same  general  principle  also  rests  tha 
right  to  call  out.the  militia  ;  for  this  is  also  a  com  • 
pulsory  service,  and  ihe  grant  of  power  to  do  this 
is  no  stronger  than  that  to  raise  armies.  But  it  is 
Said  that  the  power  to  call  out  the  militia  has  been 
given,  and  as  this  is  compulsory  in  its  character, 
we  are  to  presume  that  no  other  character  of  com- 
pulsory eer? ice  was  authorized  or  intended  to  bo 
granted.  How  the  mere  grant  of  one  power,  coin 
pulsory  in  its  character,  can  limit  or  destroy  an- 
other, which  had  been  previously  given,  in  equal 


Jy  •xpress  terms,  we  do  not  perceive.  But  in  con- 
neetion  with  this  e abject,  it  is  also  insisted  that  the 
right  to  raise  armies  must  be  taken  in  subordina- 
tion to  the  power  conferred  over  the  militia,  as 
otherwise  the  rights  of  the  State  iit  this  particular 
would  be  destroyed  :  and  hence  the  power  con- 
ferred upon  the  Confederate  Government  to  raise 
armlet,  it  Is  said  by  those  who  urge  this  objection , 
must  be  construed  as  only  authorizing,  when  an 
trn;  it  to  be  raised  from  the  arms  bearing  citizens 
of  the  States,  that  this  shall  be  done,  either  by 
their  voluntas  enlistments  or  by  calling  forth  the 
militia. 

To  maintain  this  position  with  some  degree  of 
plausibility,  Us  supporters  are  forced  to  assume 
(bit  the  militia— which  the  Constltutioa  says  i» 
neeesaary  to  the  security  of  a  free  State,  and 
which  Congress  may  provide  for  calling  forth, 
rubjeet  to  the  right  of  the  State  to  appoint  the  offi- 
oori—isjsynoDy  mous  with  the  arm -bearing  ciUien* 
cf  the  State  ;  and  they  therefore  say  if  an  army  I* 
raised  from  these  citizens,  except  by  their  volun- 
tary enlistment,  that  in  fact,  whether  it  is  so  in 
name  or  not,  the  militia  have  been  called  forth, 
and  the  right  of  the  State  to  appoint  the  officers  to 
command  them  cannot  be  disregarded, 
ik  The  fallacy  of  the  position  seems  to  be  manifest 
from  the  qualification  which  they  are  forced  to  give 
it :  for.  as  we  have  ehown,  the  citizen  has  no  right 
to  exercise  volition  with  regard  to  the  perform- 
ance of  military  duty,  so  as  to  impair  or  qualify 
the  power  of  Congress  to  raise  armies;  and  if  the 
nuauflcation  exists  by  means  of  the  rights  of  tho 
States  over  the  arm-bearing  citizens  as  its  militia, 
and  to  appoint  their  officers,  when  in  the  servics 
cf  the  Confederate  States,  these  rights  could  not 
rarely  be  affected  by  the  voluntary  action  of  the 
citizen  ;  nor  can  the  difficulty  be  gotten  over  by 
saying  that  it  is  further  to  be  assumed  that  tho 
State  m«Btbe  presumed  to  have  consented  to  this 
voluntary  enlistment ;  for  it  is  as  important-aa  the 
tltlzen  to  destroy  in  this  manner  a  constitution^ 
light  conferred  upon  Congress,  or  thus  to  confer 
one  not  othorwise  given.  The  question  goes  to 
the  right  of  the  State  to  appoint  officers  to 
mand  its  arm-bearing  citizens  when  in  the  service 
of  the  Confederate  States,  because  they  are  mil  it  » 
men.  But  the  individual  is  equally  an  arms  bearing 
citizen,  whether  he  has  gone  into  the  service  vol- 
nntarily  or  otherwise.  For  surely  the  doctrine  is 
not  to  be  advanced  that  individuals,  companies,  or 
regiments  of  the  "well  regulated"  arms-bearing 
citizens  "  necessary  to  the  security  of  a  free  State" 
which  have  been  organised,  armed  and  disciplined 
as  provided  lor  by  Congress,  and  for  whom  a  call 
is  made  by  tha  Confederate  States  in  pursuance 
with  the  constitution,  coaaetobe  Integral  parte  of 
the  arms-bearing  citizens  of  the  State,  becauso 
they  prefer  to  volunteer  their  services  directly  to 
the  Confederate  Government,  and  it  is  willing  thns 
to  accept  them.  Can  they  in  this  manner  evade 
or  annul  Unconstitutional  right  of  the  State,  if  it 
ie  such,  to  appoint  the  officers  to  command  its 
arms-bearing  citizens  when  in  the  service  of  tha 
Confederate  States  ?  It  is  said,  however,  that  un- 
less this  qualification  is  placed  upon  the  power  of 
Congress  to  raise  armies,  the  control  cf  the  Stata 
Over  its  militia  may  be  entirely  destroyed ;  but 
would  not  the  result  be  the  same,  if  an  equal  num  • 
her  of  its  militia  were  to  volunteer  into  the  ser- 
vice of  the  Confederate  States  t  The  truth  of  the 
matter  is,  that  when  the  citizen  goes  into  the  army 
raised  by  Congress,  either   voluntarily  or  in  obe- 


dience to  the  law  requiring  htm  to  do*o,hed«ee 
this  as  a  citizen,  and  not  as  a  militia  man.  Con- 
gress has  not  the  right  to  raise  armies  in  either 
mode  beyond  the  necessities  of  the  Confederate- 
Government,  for  carrying  Into  effect  its  granted- 
powers.  But,  in  either  case,  the  citizen  whe* 
placed  in  its  service,  is  temporarily  withdraw* 
from  the  control  of  the  State  as  a  militia  man. 
For  the  time  being,  the  right  of  the  State,  or  more 
properly  speaking,  the  right  of  the  State  Gcrrern- 
raent  over  him  must  yield  to  the  more  pressing 
and  imperative  demand  for  his  servicer  bytb* 
Confederate  Government, to  enable  it  to  discharge- 
the  duties  for  which  it  has  been  authorized  to  raise 
and  support  armies. 

The  construction  contended  for  would  destroy 
one  of  the  grants  of  power  conferred  upon  Con- 
gress by  the  constitution ,  and  would  reduce  iti  au- 
thority merely  to  that  of  raising  and  supporting 
armies,  by  calling  forth  the  militia,  instead  of  au- 
thorizing it  as  it  does,  to  raise  and  support  armies* 
and  under  certain  circumstances  to  cell  for  the 
militia.  For  if  you  limit  Congress  to  the  volunta- 
ry consent  of  the  individual  citizen  to  enable  itto 
raise  an  army,  you  have  destroyed  its  power,  an  J- 
conferred  upon  it  simply  the  privilege  of  doing  so. 
But  the  strong  language  of  the  constitution  is  that 
"  Congress  shall  have  the  power,"  &c,  <&c.  The 
Imperative  duties  imposed  upon  Congress  would 
alone  have  been  sufficient  to  authorize  it  to  have 
exercised  this  power  as  the  necessary  and  proper 
means  for  their  performance;  and,  it  would  not 
probably  have  been  thought  important  to  have 
conferred  it  by  an  express  grant,  but  that  from  it* 
absolute  necessity  for  the  discharge  of  those  du- 
ties, it  was  deemed  essential  to  place  it  beyond 
question  that  it  had  been  conferred.  And  this  lead* 
us  to  the  enquiry,  whether  the  construction  con- 
tended for,  will  clothe  the  Confederate  Govern- 
ment with  the  ability  and  resources  necessary  for 
the  discharge  of  the  duties  imposed  upon  it.  If 
Congress  has  only  the  power  of  raising  an  army, 
by  a  call  for  tho  militia,  it  follows  as  a  ncqessary 
consequence,  that  it  can  do  so  on  ly  for  the  purpose* 
for  which  it  is  authorised  to  c»ll  forth  the  militia 
by  the  Constitution.  It  cannot,  therefore,  raise  ant 
army  except  to  enforce  the  execution  of  the  lawc, 
to  suppress  insurrections  or  repel  invasions.  It 
is,  consequently,  powerless  to  protect  the  country 
from  sudden  assault  from  without,  or  unexpected 
commotions  from  within.  It  is  important  either 
to  enforce  private  right:-',  or  maintain  a  national 
honor  against  foreign  powers.  But  it  is  said,  that 
it  is  contrary  to  the  spirit  and  genius  of  our  insti- 
tutions, that  we  should  engage  in  foreign  or  ag- 
gressive wars,  uness  absolutely  necessary;  that  it 
is  against  tho  theory  of  our  government  that  we 
should  make  war  merely  for  conquest  or  dominion  . 
and  as  Congress  has  the  privilege  of  raising  ar- 
mies by  voluntary  enlistments,  we  may  safely  rely 
upon  the  patriotism*  and  maitial  spirit  of  the  peo- 
ple to  raise  armies,  amply  sufficient  to  prosecute- 
all  necessary  and  proper  foreign  wars;  that  the 
fact  that  the  Government  is  forced  thus  to  rely  up 
on  voluntary  enlistments  for  its  soldiers  to  main- 
tain foreign  wars,  operates,  and  was  doubtless  so 
intended,  as  a  salutary  check  in  restraining  it  fronv 
engaging  in  them  unnecessarily.  And,  as  was  satcb 
by  counscTat  the  bar,  "When  war  is  made,  it  Is  the* 
people's  war,  and  if  they  aro  not  willing  to  fight 
to  carry  it  on,  the  government  ought  to  stop  iU" 

But  if  the  individual  citizen  may  determine  of 
himself  whe'her  he  will  aid  the  country  in  taa 


Hetd  way  may  he  net  also  elect  whether  he  will 
withhold  his  quota  of  the  revenue  that  is  collected 
to  prosecute  it  ?  It  is  not  to  be  questioned  that 
the  spirit  of  our  Government,  as  is  said,  does  not 
encourage  wars  for  conquest,  or  dominion,  and 
for  this  reason,  among  others,  the  war-making 
power  was  conferred  upon  the  representatives  of 
the  people.  It  is  therefore  unquestionably  true, 
that  war,  when  declared  by  their  representatives, 
is  their-war,  and  they  can,'at  any  time  they  desire 
to  do  so,  withdraw  from  the  Government  all  means 
of  prosecutingor  maintaining  it, or  can  limit  and 
control  it  in  the  manner  of  its  prosecution,  or  in 
the  mode  of  raising  armies  to  carry  it  on,  as  to 
them  mayeeemfit.  It  may  be  truo,  also,  that  the 
patriotism  of  our  people  may  at  all  times  be  relied 
upon  to  furnish  by  voluntary  enlistments  sufficient 
forces  to  prosecute  any  war  in  which  the  nation 
ahould  engage. 

But  still  this  does  not  go  to  the  merits  01  the 
question,  which  is,  whether  the  people,  through 
their  representatives,  have  not  the  power,  if  they 
MeflUo  exert  it,  of  niakiDg  tUe  burthens  of  the 
war  fall  equally  upon  the  willing  and  unwilling. 
It  is  not  denied,  however,  that  the  Confederate 
States  may  be  required  to  engage  in  a  foreign  war. 
If  this  is  so,  it  is  the  duty  of  its  citizens  to  sustain 
it  in  its  prosecution ;  bulwhy  should  the  Govern- 
ment be  forced  to  rely  upon  the  individual  assent 
or  voluntary  aid  of  the  citizens  in  this  more  than 
in  the  discharge  of  any  other  duty,  or  the  exercise 
of  any  other  power  with  which  it  is  clothed  1  Why 
should  not  the  citizen,  if  in  this  case  he  is  left  to 
individual  volition^  have  tho  eamo  privilege  if 
ealled  upon  as  a  militia  man  to  aid  in  a  defensive 
war?    If  patriotism  is  a  sufficient  guarantee  fir 
the  ability  of  the  Government  in  carrying  on  the 
war  in  one  cate,  why  is  it  not  so  in  the  other  1 
Will  the  citizen'  be  less  ready  to  respond  to  the 
call  of  the  Government  for  the  defence  pro  oris 
ttfocis  than  he  would  bo  when  prosecuting  a  for- 
eign war  ?   Certainly,  the  very  reverse  is  the  fact , 
and,  therefore,  when  tho  militia  are  needed,  the 
tame  stringent  force  over  them  is  notgiven  by  the 
Constitution  as  ki  given  over  them  as  citizens  by 
Ihe  power  to  faise  armies,    in  the  latter  case, 
Congress  acts  immediately  upon  them  as  individu- 
als; while  in  the  former  it  must  raise  thorn  by  a 
call  upon  the  State  Executive,  and  if  this  is  disre- 
garded it  has  no  power  to  enforo  obedience, 
i        The  origin  of  tlm  grant  of  power  to  raise    ar- 
mies, shows  most  conclusively  that  it  was  not  in- 
tended to  have  the  Government  dependent  upon 
the  will  either  of  the  citizen,  or  the  State,  to  car- 
ry it  into  effect.    It  is  given  in  our  Constitution  as 
it  was  originally  in  the  Constitution  of  theTJ.  S., 
and  was    placed  in  that   for  the  purpose    of  cor- 
recting one  of  tho  leading  defects  iu  the  articles 
of  Confederation.    Experience  having  proved  it 
absolutely  essential,  not  only  to  the  safety  but  to 
tho  very  existence  of  tho  Confederacy.    The  fol- 
lowing striking  jfarigu&ge  tx^s  used  at  that  timo  in 
reference  to  the  want  of  this  power  in  the  articles 
of  Confederation,  and  the  necessity  of  its  grant  to 
tfce  general  government  in  the  then  new   Union 
about  being  formed.    "They  may  make    war  and 
determine  what  number  of  troops  aro  necessary, 
but  cannot  raise  a  single  soldier.'1    Again,  "A 
government  authorised  to  declare  war,  but  relying 
on    independent  States  for  tho    means  of  prose- 
eating  it,  capable  of  contracting  debts  and  pledg- 
ing the  pubiic  faith  for  their  payment— but  depen- 
ding en  tiirtceu  distinct  sovereignties  for  the  pro- 


tervatlon  of  that  faith,  could  only  be  rescued  from 
ignominy  and  contempt  by  flndlDg  those  sover- 
elgutlee  administered  by  men   exempt  from  the 
passions  incident  to  human  nature."— 1st,  Story 
Const.  158  $  9.  Andlnthe  Federalist, (p.  98,)writ- 
ten  as  is  well  known  to  secure  the  adoption  of  tho 
Constitution  of  the  U.  S.,  we  find  the  necessity  for 
this  grant  of  power  boldly  expressed,  and  the  ruin- 
ous effects  of  attempting  to  rely  upon  calls  upon 
the  States  for  troops  to  prosecute  a  defensive  war 
clearly  and  strikingly  portrayed.    "The  power," 
saysthe  author,  '*of  ralsingjarmies,by  the  obvious 
construction  of  the  articles  of  the  Confederation 
is  merely  a  power  of  making   requisitions  upon 
the  States  for  quotas  of  men.    This  practice  in  the 
course  of  the  last  war,  was  found  replete  with  ob- 
structions to  a  vigorous  and  to  an  economical  sys- 
tem of  defence.    It  gave  birth  to  a   competition 
i'Otween  the  States  which  created  a  kind  of  auction 
for  men.    In  order  to  furnish  the  quotas  required 
of  them  they  out  bid  eacll  other,  till  bounties  grew 
t)  an  enormous  and unsupportable  size;  Thehope 
of  still  further  increase  offered  an  inducement  to 
tiiose  who  were  disposed  to  serve  to  procrastinate 
their  enlistment  and  disinclined,  them  from  en- 
gaging for  any  considerable  periods.    Hence  slow 
and  scanty  levies  of  men,   in- the  most  critical 
emergencies  of  our  affairs,  short  enlistments  ata» 
unparalleled  expense;  continued  fluctuating  in  the 
troops,  ruinous  to  their  discipline  and  subjecting 
the- public  safety  frequently  to  tkeperiloun  crisis 
of  a  disbanded  army."    Hew  far  like  evils  may 
have  threatened  us  and  induced  a  change  of  policy 
by  the  enactment  of  the  present  law,  it  is  unneces- 
sary to  enquire.    Nor  need  we  comment  upon  the 
unavoidable  and  disastrous  effects  that  must  have 
resulted  from  conflicts  and  jealousies  among  the 
officers  of  militia,  the  right  to  whose  appointment 
is  so  zealously,  insisted  upon.    If  the  State  must 
appoint,  it  must  also  fill  vacancies  and  give  pro- 
motions leadiDg  to  inevitable  and  unending  dis- 
putes about  rank,  that  sacred  and  never  to  be  in- 
fringed right  of  the  officer,  producing  jarring  and 
discordant  elements  in  command  more  disastrous 
in  allmilitary  enterprises  than  even  a  want  of  dis- 
cipline in  troops. 

But  suppose  the  theory  of  those  who  oppose  the 
constitutionality  of  this,  law  is  correct,  and  the 
new  levies  have  been  called  Into  the  field,  not  as 
Iroopi  of  the  Confederate  States  under  tho  power 
to  raise  armies,  but  as  militia,  what  might  be  the 
consequences.  The  theatre  of  the  war,  if  at  pro- 
sent  confined  to  our  own,  territory,  may  before  its 
close  be  necessarily  shifted  to  that  of  the  enemy. 
If  the  proper  occasion  should  present  itself  for 
carrying  the  war  into  the  enemy's  country,  shall 
ouv  commanders  be  impotent  to  avail  themselves 
of  it,  because  of  the  character  of  the  forces  under 
their  command  ?  If  they  are  militia,  they  have 
no  constitutional  authority  to  march  them  beyond 
our  own  frontier,  because  the  Constitution  has 
limited  the  right  of  tho  government  to  demand 
their  services  for  the  purpose  of  repelling  inva- 
sion. This  doctrine  was  expressly  recognised  and 
maintained  in  Congress  in  1812  by  all  the  strict 
constructionists  and  State  Rights  politicians.  It 
mny.  De  saiJ  there  w©uid  uudcr  such  cir- 
cumstances, be  no  fear  that  the  States  would 
not  sanction  this  use  of  its  militia,  and  the  pa- 
triotism of  the  citizen  soldiers  could  be  relied  upoa 
with  equal  confidence  to  sustain  their  country  ia 
thu  as  in  every  other  emergency.  It  was  said  l»y 
«r.  CheTe*»than  whom  we  could  desire  no  higher 


authority,  in  response  to  this  character  of  reason- 
ing :    "Though  the  gentleman  from  New    York 
says  the  service   of  the  militia  it  not  to  be  boun- 
ded by  geographical  limits,    I    cannot   discover 
the   premises  by  which  he.  comas  to  this   con- 
dlnsion,  if  the  general  government  has  no  other 
power   over  the  militia  than   is  given  to  it  in 
this  clause  of  tho  Constitution.    If  they  may  cross 
the. line, why  not  go  to  the  walls  of  Quebee  ?  Tho 
principle  is  trampled  upon  the  instant  they  pass 
'  beyond  the  territorial  limits  of  the  United  State; ; 
■ow  if  this  be  a  correct  construction,  can  the  con- 
tent of  the  individual  add  anything  to  the  powers 
or  rights  of  the  general  government  while  he  re- 
mains a  member  of  tho  militia  of  the  State?"    4  I 
vol.  Elliot's  debates  459.    And,  however  patriotic  I 
the  soldiery  may  be,  it  takes  but  little  knowledge  ? 
of  armies  or  of  men  to  teach  us  that  war  cannot 
be  conducted  under  a  system  by  which  the  right 
of  the  general  to  command  depeeds  from  day  to  I 
day  upon  the  consentof  his  soldiers.    But  if  this  j 
were  not  the  case,  can  we  assent  to  such  a  limita- 
tion of  a  power  of  Congress  by  mere  construction 
as  leaves  tho  government  Impotent  to  discharge    • 
Xs  constitutional  dut'es,  unless  the  State  or  its 
militia  shall  consent  to  the  violation  of  the  Con- 
stitution ?     If  so  it  may  truly  be  said  of  the  Con- 
federate States,as  it  was  of  the  old  Confederation, 
it  may  declare  war  but  it  is  impotent  to  prosc- 
eute  it. 

The  theory  of  our  government,  when  properly 
understood,  does  not  militate  against  the  constt- 
tutionality  of  the  laws.  On  the  contrary,  it  clear- 
ly tends  to  sustain.  The  difficulty  In  the  minds  o  f 
many  scorns  to  grow  out  of  a  failure  to  discrim- 
inate in  tho  use  of  the  word  "  State.'*  Whether 
H  imports  merely  the  local  or  State  Government, 
,  or  the  politicaljcommunity ;  the  nationality  ,the  peo- 
'  pie  of  tho  State  in  the  aggregate,  as  a  nation  or 
political  community,  or  as  it  is  frequently  express- 
ed the  ''sovereign  State;"  and  in  this  way  they 
eometo  think  of  the  local  (or  so  to  call  it  domes- 
tie)  government,  asthe  government  of  the  sover- 
eign State,  having  some  undefined  imaginary  grant 
of  power,  possessing  itself,  as  the  repretentative  of 
the  sovereign  State,  some  degree  of  sovereignty. 
^Especially  so  with  reference  to  the  Confederal* 
Government,  which  they  seem  to  think  should  be 
regarded  as  a  creature  of  its  creation  and -subor- 
dinato  to  it;  and,  hence,  that  its  powers  should 
be  construed  in  subordination  to  those  of  ihis  im- 
mediate representative  of  the  sovereign  State.  In 
fae.t,  however,  nothing  is  better  established  than 
that  neither  of  these  governments  is  inferior  or 
superior  to  the  other,  While  both  possess  some 
of  the  powers  which  are  called  by  law-writers  in 
distinguishiug  different  forms  of  government 
*' sovereign  powers,"  neither  of  them  are  them- 
selves sovereign,  but  each  of  them  represents  the 
sovereign,  and  both  have  within  their  mutual 
spheres  of  action,  just  such  powers  and  functions 
ashavebeon  conferred  upon  them  by  tho  consti. 
tution  creating  them.' 

When  we  enquire  then  what  disposition  the 
sovereign  State  has  made  of  its  rights  to  military 
service  from  its  citizens,  between  these  two  Gov- 
ernments, by  whom  it  proposes  to  administer  its 
government,  we  find  it  has  given  to  its  Confeder- 
ate asency,  ho  to  call  it,  the  sole  power  to  deter- 
mito  upon,  the  questions  of  war  and  peace,  and 
that  it  has  consequently  made  it  the  duty  of  that 
agent  to  protect  the  State  itaelf,  and  its  local  agency 
from  attack,  from  both  domestic  and  foreign  foe* , 


and  that  it  had  clothed  it  with  the  power  to  do  thi* 
by  authorising  it  to  raise  and  support  armies  and 
to  provide  and  maintain  a  navy,  to  the  extent  that 
in  its  judgment  it  should  deem  necessary,  and  lest 
it  should  cot  have  prorided  amply  for  these  pur- 
poses, or  should  be  overtaken  by  a  sudden  emer- 
gency, it  is  further  authorised  to  call  upon  the 
other  agency  to  bring  to  its  aid,  if  necessary,  all 
of  the  arms-bearing  po3ulation  it  had  left  still  un- 
der the  control  of  the  bcal  agency,  for  whose  or- 
ganization it  was  required  to  provide,  that  tho 
local  agency  might  bethua  prepared  to  meet  the 
call  that  these  sudden  emergencies  might  occa- 
sion. But  as  these  calls  would  bt  rare,  and  the 
armies,  which  the  Cojfederate  agent  would  re- 
quire to  prosecute  andcarry  on  the  wars,  in  which 
it  would  become  in volted,  except  under  extraor- 
dinary circumstancee.lwhich  whould  hardly  hap- 
pen mo  e  than  once  is  the  life  time  of  a  nation  ; 
would  compose  but  a  sfnall  part  of  the  population 
of  the  State,  and  the  ,ocal  agency  might  also  b<j 
called  upon  ,  by  suddeit  emergencies  to  defend  it- 
self  and  tho  State  befej-e  a  call  could  be  made  up- 
on the  other  agent,  an!  as  that  was  intended  more 
especially  to  represent  the  foreign,  and  this  the 
domestic  affairs  of  tho  (state,  the  militia  or  citizens 
not  required  In  the  annles  raised  by  the  Confed- 
erate agency, were  leflunderthe  control  of  the  lo- 
cal agency,  with  the  rght  of  appointing  their  offi- 
cers, when  it  should  barequired  to  furnish  them  in 
these  casea  of  emerglnce  for  the  service  of  the 
Confederacy. 

These  agencies,  tholgh  possessing  distinct  pow- 
ers, have  to  look  for  tlfcir  performance  to  the  cit- 
izens, and  consequent^  as  in  many  other  grants 
of  power  to  theni,  their  aetion  is  con- 
current over  the  sane  subject  matter,  and  at 
times  may  thus  pre|ont  seemingly  conflicting 
grants  of  power.  Wlat  then  is  to  be  their  con- 
struction? Theanswtf  is  plain.  The  limited  and 
subordinate  must  yiekto  the  general  and  superi- 
or, consequently  suchfes  usually  pertain  to  or  are 
Indices  of  sovereign  ]ower,  mutt  control  and  bo 
regarded  as  superior  o  those  of  a  local  and  do* 
mestic  character.  Oldinarily,  there  would  be  no 
appreciable  conflict  brtween  these  grants  of  power, 
as  the  number  of  citicens  .the  Confederate  Gov- 
ernment would  reqaiie  for  it*  armies,  would  be  so 
inconsiderable  with  reference  to  the  bulk  of  mi- 
litia left  under  the  control  of  the  local  govern- 
ment as  to >o  for  practicable  purposes,  uuimpor- 
tantto  tho  latter,  iut  great  emergencies  like 
that  which  now  exie/s,  will  sometimes  arise  when 
the  Confederate  Government  is  forced  to  exer- 
cise tho  entire  milit/ry  power  that  has  been  grant- 
ed it;  and  there  Is1  consequently  a  ball  of  th-s 
great  bulk  of  the  Irnjs-bearing  citizens  into  its 
armies,  and  a  corresponding  diuiinuition  of  thos* 
under  the  immediate  control  of  the  State  Govern- 
ment, under  the  law|  governing  the  militia,  tho 
natural  result  of  which  is  to  arouse  fearful  appre- 
hensions of  coming  danger,  in  the  over  zealous 
advocates  of  State  rights,  or  those  who  have  b-en 
accustomed  to  louk'with  apprehensions  upou 
any  expansion  of  the piilitary  power  of  the  gen- 
eral government.  It  mst  be  borne  in  mind,  how- 
ever, that  the  denial  f  the  power  to  raise  such  an 
army  as  the  necessili  s  of  the  Government  may 
required,  is  a  denial  f  the  right  to  raise  a  single 
man;  while  if  the  po  er  xists,  it  does  so  only  to 
the  extent  of  authoriang  the  Confederate  Govern* 
ment  to  raise  and  support  such  armieraa  are  Ab- 
solutely essential  tcWiuble  it  to  cany  into  effect 
the  powers  grunted  14  it,  and  though  a   necessity 


\o: 


exists  to-day, and  the  law  it  therefore  ecnstita- 

tional,  if  to-morrow  that  necessity  should  cease, 
itseontinuanca  would  be  as  clearly  unconstitu- 
tional. 

It  is  alio  urged  that  this  law  introduces  a  novel 
practice  in  this  country,  for  raising  armies. 
If,  however.  It  is  within  congressional  discre- 
tion in  the  exercise  of  the  power  graated,  this 
does  not  affect  its  eomtitutionality.  And  If  the 
practice  of  conscription  is  novel  with  us,  so  are  the 
circumstances  which  n«w  surround  the  country. 
Ingaged  in  a  contest  tint  involves  onr  existence 
as  a  nation,  out  libertiet  as  a  people,  our  lives 
and  the  honor  of  our  homes,  all  that  we  can  desire 
in  life  er  hops  for  in  ou*  posterity,  with  enemies 
who  boast  tbat  they  will  soon  have  in  the  field  an 
army  far  exceeding  in  numbers  our  entire  arms- 
bearing  population;  wh>, baffled  in  an  unholy  lust 
for  gain,  and  maddened  by  revenge^  have  buried 
at  home  the  once  cherisied  principles  of  Republi- 
can liberty,  in  a  concentrated  military  despot* 
ism,  that  tbf  y  might  thebetter  hope,  if  not  to  con- 
quer, then  to  destroy  us;  who  have  shown  them. 
selves  as  treacherous  aid  false  in  the  Cabinet  as 
cruel  and  wanton  in  th<  camp;  who  have  waged 
a  war  of  almost  externination  upon  all  classes 
and  sexes  of  unoffendiig  citizens  who  have  fal- 
len In  their  power,  regarding  neither  the  help- 
lessness of  infancy  nor  he  feebleness  of  age,  save 
as  furnishing  them  a  core  certain  victim  ;  who, 
though  even  accustomec  to  boast  of  their  morality 
and  rirtue  with  the  ielf-righteouflnest  of  the 
Pharisee,  have  shown  hemselves  as  dovoid  of 
either,  as  they  have  bein  wanting  iu  every  en- 
nobling principle  of  chialrous  and  civil  warfare  ; 
who,  in  two  short  campai.us,  have  paralleled  every 
atrocity  of  war  for  the  last  two  hundred  years, — 
engaged  in  such  a  wai,  if  our  Government  had 
failed  to  avail  itself  of  erery  resource  at  its  com- 
mand, for  its  most  iffective  prosecution,  it 
would  have  shown  itsaf  derelict  in  duty,  aD<I 
unworthy  of  the*  high  onfidence  with  which  the 
country  has  so  generousy  trusted  it. 

Though  this  is  the  flrstoccasion  in  this  country 
that  an  army  has  been  aised  by  conscription,  it 
does  not  come  before  the*ountry  without  the  sanc- 
tion of  high  authority.  One  principle  upon  which 
it  is  based  was  sanctionel  and  approved  by  Gen. 
Washington  in  1790;  an  it  was  maintained  in 
1812  by  Mr.  Monroe,  thei  Secretary  of  War,  in 
am  argument  of  convincing  clearness  and  cogen- 
cy, Tol.  7,  Niles*  Register,p.  137— 294  ;  vol.  8,  p. 
281.  Mr.  Troupe  and  othe-  strict  construe tionigtt 
of  that  day  gave  it  their  sanction. 

The  judgment  is  affirmed. 

(Signed,)  GIORGE  I.  MOORB. 


Opinion  of  Associate  Justice   Bell. 

I  concur  in.  what  is  sad  in  the  opinion  of  the 
Court,  respecting  the  notion  which  has  been 
made  by  the  Attorney-General,  for  the  continu- 
ance of  this  cause.  1  concur  also  in  the  correct- 
ness of  the  proposition,  hat  the  right  of  a  party 
to  the  writ  of  Habeas  Cirpua,  does  not  depend 
opon  the  legality  orillegdity  of  his  original  cap- 
tion and  detention,  but  moa  the  legality  or  Ille- 
gality of  the  restraint  at  the  time  the  writ  is  is- 
sued ard.  the  return  math.  I  do  not,  therefore, 
feel  at  liberty  to  discuss  tie  legality  of  the  origi- 
nal arrest  of  the  appellant,  or  the  right  of  military 
commanders  to  place  the  citizens  of  these  Confe- 
derate Statfg  under  martial  law.    As  it  appears, 


however,  from  the  record,  that  the  Chief  Juaties, 
upon  the  original  hearing,  declared  tbat  "bi» 
mind  was  made  up  as  to  the  constitutionality  ef 
martial  law,'*  from  which  expression  I  under- 
stand that  he  meant  to  express  the  opinion  thai 
martial  law,  as  it  existed  in  the  eounty  of  Travic, 
at  the  time  of  the  return  of  the  writ  in  this  case, 
might  be  declared  and  enforced  in  conformity 
with  the  Constitution  of  the  Confederate  States; 
that  it  may  not  bo  supposed  that  1  entertain  a  si- 
milar opinion,  I  take  leave  to  say,  that  nothing,  4b 
my  judgment,  con' d  be  a  more  palpable  violation 
of  the  Constitution,  and  of  th  e  rights  of  citiaen* 
I  be'ieve  that  "the  Constitution,"  in  the  language 
of  Vice-President  Stephens,  "was  made  fos  war 
as  well  as  for  peace,"  and  that  there  exists  no 
power,  in  any  department  of  the  Government  of 
the  Confederate  States,  to  transcend  it,  or  to  sus- 
pend it,  upon  any  notion  of  public  n-eessity.  I 
believe  that  no  power  exists  anywhere  in  tbe-Con- 
federate  Government  to  subject  citizens,  not  be- 
longing to  the  Army  or  Navy,  and  not  actually 
serving  in  the  militia,  to  any  military  code,  or  t» 
the  will  of  any  military  officer,  Provost  Marsha) 
or  other-,  or  to  the  jurisdiction  of  any  other  tribu- 
nal than  the  ordinary  Courts  of  Justice  established 
by  law. 

1  oelieve  that  under  the  Constitution  of  th* 
Confederate  States,  "no  person  can  be  held  to  an- 
swer for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  Grand 
jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  service, 
in  time  of  war  or  public  danger ;"  and  that  "in  all 
criminal  prosecutions,  the  accused  has  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury 
of  the  State  and  district  wherein  the  crime  shalfc 
have  been  committed."  1  know  that  some  hav» 
supposed  that  Congress  has  the  power  to  declare- 
martial  law,  as  an  incident  of  the  power  to  mak* 
war.  It  is  true  that  Congress  has  the  war  power  j 
but  that  power  and  all  its  other  powers,  must  be 
exercised  in  subordination  to  those  provisions  of 
the  Constitution  which  I  have  just  quoted.  Bat 
I  said  that  I  do  not  feel  at  liberty  to  discuss  the 
subject.  I  therefore,  take  leave  of  it,  havingsaid! 
thus  much  only  from  a  desire  that  my  humble  tes- 
timony, worthless  as  it  may  be,  shall  ever  bein 
support  of  the  laws  and  of  the  rights  of  the  peo- 
ple, rather  than  in  support  of  arbitrary  power 
which  is  destructive  alike  of  public  liberty  and 
private  right. 

I  am  notable  to  eon  cur  in  the  judgment  which 
has  been  rendered  in  this  case,  nor  in  the  reason- 
ing of  the  majority  of  the  Court,  in  support  of  the 
constitutionality  of  Jtheacts  of  the  Congress  of  the 
Confederate  States,  commonly  called  the  Con- 
script Laws.  I  believe  those  acts  to  be  unconsti- 
tutional. The  question  is  one  of  the  greatest  mag  - 
nitude  ;  it  is  directly  presented  for  decision ;  and 
believing  it  to  be  fraught  With  the  most  vital  con- 
cern to  the  principles  of  civil  liberty  and  free  gov- 
ernment, I  cannot  forbear  to  express  my  opinion. 

It  is  said  in  support  of  the  constitutionality  of 
these  acts  of  Conscription,  that  the  war  making 
power  is  committed  to  Congress,  by  the  Constitu- 
tion, and  that  it  is  also  declared  by  the  Constitu- 
tion that  Congress  shall  have  power  "to  raise  and 
support  armies  ;"  and  it.  is  contended  that  this 
power  to  raise  and  support  armies,  is  without  any 
limitation,  and  that  Congress  may  exercise  an  un- 
limited discretion  in  the  choice  of  the  means  by 
which  to  carry  it  into  effeet.    In  the  opinion  of 


II 


tf«  Court,  the  arguments  employed  by  the  authors 
nf  the  Federalist,  when  the  Constitution  of  the 
TJaited  States  was  before  the  people  for  their  con- 
sideration, to  show  that  it  was  necessary  to  confide 
to  the  General  Government  about  to  be  instituted, 
the  power  to  raise  and  support  armies,  are  quoted 
The  arguments  employed  by  the  same  writers,  to 
show  that  there  ought  to  be  ao  limitation  upon  the 
power  of  the  Qeneral  Goverumen  t  to  rarse  and  sup* 
port  armies,  are  also  quoted.  Vattel  is  quoted  as 
authority  for  the  propositloa  that,  "no  person  ts 
naturally  exempt  from  taking  up  arms  In  defence 
of  the  State,"  and  that,  "every  man  capable  of 
bearing  arms,  should  tike  them  up  at  the  first  or- 
der of  him  who  has  the  power  of  making  war," 
that  is,  at  the  first  order  of  the  Sovereign.  It  is 
further  argued,  in  the  opinion,  that  if  the  power 
of  the  Government  to  compel  citizens  to  enter  the 
military  service  be  denied,  this  it  equivalent  to  a 
denial  of  the  power  to  raise  armies  ;  that  if  the 
Government  can  only  raise  armies  by  the  volun- 
tary enlistment  of  citizen?,  the  power  is  wanting, 
arid  only  a  privilege  remains.  It  is  also  assumed 
that,  for  the  General  Government  to  compel  all 
citizens  between  the  ages  of  eighteen  and  forty- 
five  years,  to  enlist  in  the  regular  army,  under  of- 
ficers appointed  by  the  President,  is  no  interfe- 
rence with  the  constitutional  tights  of  the  State?, 
over  their  militia,  because  it  is  said, the  General 
Government  takes  the  individual  in  his  capacity 
of  citizen,  and  not  in  his  capacity  of  militia- 
man. I  shall  notice  these  positions  and  argu- 
ments only  so  far  as  may  be  necessary  to  the  pre- 
eentationof  my  own  views. 

In  an  enquiry  into  the  form,  the  spirit  and  the 
powers  of  Government,  and  the  examination  of 
questions  which  are  in  themselves  fundamental, 
while  the  proper  weight  is  to  be  given  to  former 
usage,  to  contemporaneous  expositions,  and  to 
the  opinions  of  eminent  men,  the  impartial  and 
philosophic  enquirer  after  truth  will  not  fail  to 
note  carefully  all  the  circumstances  under  which 
any  particular  usage  obtained,  the  sources  from 
which  contemporaneous  expositions  emanated,  a»d 
the  generai  character,  the  cast  of  mind,  the  poli- 
tical predilections,  the  party  connections,  and 
the  like, of  any  eminent  or  distinguished  person 
whose  opinion  may  happen  to  be  in  question. 

In  any  question  concerning  the  Constitution  of 
the  United  States,  (and  equally  in  any  question 
concerning  our  own  Constitution,  so  far  as  it  is  a 
copy  of  that  celebrated  original)  the  writings  of 
Madison,  Hamilton  and  Jay, known  as  "the  Fede- 
ralist," are  entitled  to  very  high  consideration, 
as  a  contemporaneous  exposition  of  the  powers 
intended  to  be  conferred  by  the  Constitution, 
npon  the  Government  which  it  proposed  to  es- 
tablish. 

It  is  known  to  all  persons  who  are  possessed  of 
even  a  slight  knowledge  of  the  .p*  iitical  history  of 
the  United  States,  that  Mr.  Hamilton  was  the 
exponent  of  the  opinions  of  the  Federal  party  of 
that  day,  and  that  he  was  In  favor  of  a  much 
stronger  government  than  that  established  by  the 
Constitution  af  17S7.  It  is  also  known  that  Mr.  Jay, 
the  first  Chief  Justice  of  the  United  States,  was 
also  a  member  of  the  Federal  party,  and  enter- 
tained,In  themain,  the  same  views  as  Mr.  Hamil 
ton,  on  the  subject  of  government.  'But  it  is  not 
bo  generally  known  that  Mr.  Madison,  who,  soon 
ftfter  the  adoption  of  tho  Consti  u  ion,  Joined  tho 
Republican  party,  and  became  the  ablet  suppor- 
ter of  Mr.  J'ffersoo  in  his  great  itrugg'e  with  the 


elder  Adam*,  was,  until  the  adjournment  of  ft* 
Convention  which  formed  the  Constitution,  m 
much  In  favor  of  a  strong  government  as  Mr.  H*» 
milton  himself,  or  nearly  so.  Such  however,  wa» 
the  fact,  and  all  his  propositions  in  the  Fedenst 
Convention  bear  testimony  to  the  fact. 

la  his  Discourse  on  the  Constitution  and  Gov- 
ernment of  the  United  States,  Mr.  Calhoun,  com- 
menting upon  tho  opinions  of  the  authors  of  th« 
Federalist,  and  arguing  to  show  that  they  had 
fallen  into  a  radical  and  dangerous  error,  concer 
oing  the  very  form  of  the  Government,  as  Federal 
or  National,  uses  the  following  language  :  "How 
the  distinguished  and  patriotic  authors  of  this 
celebrated  work  fell,  against  their  own  clear  an* 
exp  lcit  adinssslons.  into  an  error  so  radical  and 
dangerous,  one,  which  has  contributed. more  than  an 
others  combined,  to  cast  a  mist  over  our  system  of 
Government,  and  to  coufjund  and  lead  attray  th* 
minds  of  the  comrourdty,  as  to  the  true  conceptloa 
of  Its  real  character,  cannot  he  accounted  for,  with- 
out adverting  to  their  history  and  opinions,  as  con- 
nected with  the; form  ition  of  the  Constitution.  Th* 
two  principal  writers,  (meanlnt  Mr.  Hamilton  and 
Mr.  Madison)  were  prominent  members  of  the  Con- 
vention, and  leaders  in  that  body  of  the  party  whlcA 
supported  the  plan  for  a  National  Government.  Th«< 
otner  (meaning  Mr.  Jay)  although  not  a  member,  is 
known  to  have  belonged  to  the  same  party.  T&ey  aB 
acquiesced  in  the  decision  which  overruled  their  fa- 
vorite plan,  and  determined  natriot'cally.  to  give  that 
adopted  by  the  Convention  afatrtrlal.  without,  how 
ever,  surrendering  their  preference  for  their  own. 
scheme  of  a  National  Government.  It  was  In  thta 
state  of  mind,  which  could  not  fail  to  exercise  a  strong 
Influence  over  their  Judgment*,  that  they  wrote  the 
Federalist;  and  on  ail  questions  connected  with  th» 
cbaract'.-r  of  the  Government,  due  a'lowancs  should 
be  made  for  the  f ..rce  of  the  bla»,  under  which  their 
opinions  were  formed."  Thh  lugnage  Is  used,  I 
think, in  the  spirit  of  lastaud  enlightened  criticism, 
differing  somewhat  irom  the  spirit  of  tne  Senate  and 
House  of  Representatives  of  South  Carolina,  as  ex- 
hibited in  their  "Protest  against  the  system  of  pro- 
tecting duties,"  in  which  they  thought  proper  to  of- 
fer an  apolcgy  for  cltli  g  the  Federalist  as  an  authorl- 
tvupon  apolitical  queitlon.  If  then,  1t  can  he  shown 
that  the  writers  of  the  Federalist ,  ha"e  not  only  not 
claimed  for  the  Government  of  the  United  States  an 
unlimited  power  over  the  citizens,  for  the  pwposea  of 
war,  but  have  constancy  tased  their  arguments,  con- 
:  the  war  power  of  the  Government,  upon  a»- 
bumpiions  wholly  at  variance  with  any  idea  of  unli- 
mited control  over  the  citltf-n<!,  th's  would  seem  to 
go  a  great  way  toward  establishing  the  portion,  that 
,  eminent  has  no  t.uch  unlimited  control.  The 
authors  of  the  Federalist  painted  in  strong  colors  th* 
imbecility  of  the  States,  under  the  Artie' ea  of  Con- 
federation, and  showed  that  Congress  under  that, 
-vstem,  lacked  the  powers  essential  to  efficient  ana 
stable  Government.  It  devolved  upon  them  to  an- 
swer, or  they  rather  assumed  the  task  of  an** 
the  arguments  which  were  rife  throughout  the  ceus- 
try,  against  stanling  armies  in  time  of  peaee.  They 
asserted  the  evident  proposition,  that  if  the  Govern- 
ment about  to  be  e  tablisr.ed  wks  charged  with  the 
common  defence  of  the  States,  it  bhould  be  entrust- 
ed with  the  means  essential  to  such  defence. 

It  was  said  that  the  danger  to  which  the  States 
might,  at  some  future  time,  be  exposed,  could  not 
be  estimated  or  foreseen,  and  therefore  the  Gov- 
ernment, charged  with  the  duty  of  defending 
against  sUfh  danger,  should  not  be  limited  in  it* 
power  to  defend.  Nothing  but  the  utmost  Jealousy 
of  their  liberties  could  have  made  it  necessary  to 
nrge  upon  the  people  propositions  eo  plain  and 
fundamental. 

In  the  41st  number  of  the  Federalist,  written  by 
Mr.  Madison,  taking  a  general  view  of  the  powers 
proposed  to  be  vested  in  the  Union,  he  proceeded 


12 


to  reduce  them  into  classes,  as  they  related  to  dif- 
ferent objects.  The  first  object  to  which  ho  called 
attention  was  "  security  against  foreign  danger." 
He  classified  the  powers  necessary  to  security 
against  foreign  danger  thus  :    "Those  of  decl*r- 

•  ing  war,  and  granting  letters  pf  marque  ;  of  pro- 
riding  armies  and  fleets;  of  regulating  and  calling 
forth  the  militia ;  of  levying  and  borrowing  mon- 
ey." Here,  it  will  be  seon,  the  power  of  the  Gov- 
ernment over  the  militia  is  treated  as  part  of  the 

•  war  power. 

In  number  S9  it  is  said  by  Mr.  Hamilton  :  "The 
power  of  regulating  the  militia,  and  of  command- 
ing its  services  in  times  of  insurrection  and  inva- 
sion, are' natural  incidents  to  the  duty  of  superin- 
tending the  common  defence,  and  of  watching 
over,  the  internal  peace  ofthe  Confederacy. "  Here 
again  the  militia  is  treated  as  apart  ofthe  means 
to  beused  by  the  Government  in  the  exercise  of 
the  war  power.  Again  Mr.  Hamilton  says  :  "  If 
standing  armies  are  dangerous  to  liberty,  an  efii- 
eacious  power  over  the  militia,  in  the  same  body, 
(that  is  in  Congress),  ought,  as  far  as  possible,  to 
take  away  the  inducement  and  the  pretext  to  such 
unfriendly  institutions." 

In  the  45lh  and  46th  numbers  Mr.  Madison  enter- 
ed upon  a  full  discussion  of  the  supposed  danger 
to  the  Union,and  ofthe  ability  of  the  State  Govern- 
ments to  su&tain  themselves  againt.encroavchmenlsj 

"  npon  their  reserved  powers,  by  the  Government 
ofthe  Union.  In  one  place  he  says  :  •'  The  num- 
ber of  individuals  employed  under  the  Constitu 
tion  ofthe  United  States  will  be  much  smaller  than 
the  number  employed  under  the  particular  States. 
There  will  conscqnenTy  be  less  of  personal  influ- 
ence on  the  eide  ofthe  former  than  ofthe  latter.— 
The  members  of  the  Legislative,  Executive  and 
Judiciary  Departments  of  thhteen  and  more 
States— the  Justices  ot  the  Peace,  officers  of  tho 

.  militia,  ministerial  officers  of  j  astice,  with  all  tha 
county,  corporation  and  town  officers,  tor  three 
millions  and  more  of  people  intermixed,and  hav- 
ing particular  acquaintance  with  every  class  and 
circle  of  the  people,  raust  exceed  beyond  all  prop- 
ortion, both  in  number  and  influence,  those  of 
every  description  who  will  be  employed  in  the  ad- 
ministration ofthe  Federal  system. 

Compare  the  members  ofthe  three  great  depart- 
ments of  the  thirteen  States  with  the  members 
©f  the  corresponding  departments  of  tho  eingl* 
government  of  the  Union.  Compare  the  mili  i& 
officers  of  three  minions  of  people  with  the  mili- 
tary and  marine  officers  of  any  establishment, 
which  is  within  the  compass  of  probability,  or  1 
may  add,  of  possibility;  and  in  this  view  aloae  we 
may  pronounce  the  advantage  of  the  States  to  be 
decisive." 

In  summing  up  the  argument  rpon  this  subject, 
Mr.  Madigon  said  :  "The  only  refuge  left  for  those 
who  prophesy  the  downfall  or  the  State  Govern- 
ment, is  the  visionary  supposition  that  the  Fede- 
ral  Government  may  previously  accumulate  a 
.military  force  for  the  projects  of  ambition.  The 
reasonings  contained. in  these  papers  must  have 
keen  employed  to  little  purpose  indeed,  if  it  could 
be  necessary  now  to  disprove  the  reality  of  this 
danger.  That  the  people  and  the  States  should, 
for  a  sufficient  period  of  time,  elect  an  uninter- 
rupted succession  of  men  ready  to  betray  both; 
(bat  the  traitors  should,  throughout  this  period, 
uniformly  and  systematically  pursue  some  fixed 
plan  for  the  extension  of  the  military  establish- 
meat;  thit  the  goveraments  and  the  people  ofthe 


State  should  silently  and  patiently  b<  held  the 
gathering  storm,  and  continue  to  supplythe  ma- 
terials, until  It  should  be  prepared  to  burst  on 
their  own  heads,  must  appear  to  every  one  more 
like  the  incoherent  dreams  of  a  d<  lirious  Jealousy, 
or  the  misjudged  exaggerations  of  a  counterfeit 
real,  than  llko  the  sober  apprehensions  of  genuine 
patriotism.  Extravagant  as  the  supposition  is,  let 
it'howevef ,  be  made.  Let  a  regular  army  fully 
equal  to  the  resources  of  the  country  he  formed  ; 
and  let  it  te  entirely  at  the  devotion  of  the  Fede- 
ral Government ;  eti)l  it  would  not  be  going  too 
far  to  say,  that  the  State  Governments,  with  the 
people  on  their. side,  would  b*  able  to  repel  the 
danger.  The  highest  number  to  which,  according 
to  the  best  computation,  a  standing  army  can  be  ' 
carried  in  any  country,  does  not  exceed  one  hun- 
drethpartof  the  whole  number  of  souls;  or  one 
twentyflith  part  of  the  number  at  le  to  bear  arms. 
This  proportion  would  not  yield  in  the  United 
States,  an  army  of  more  than  twenty-five  or  thirty 
thousand  men.  So  there  would  be  opposed  a 
militia  amounting  to  near  half  a  million  of  citi- 
zens with  arms  in  their  hands,  officered  by  men 
chossn  from  among  themselves,  fighting  for  their 
common  liberties,  and  united  and  conducted  by 
governments  possessing  their  affections  and  confi- 
dence. It  nny  well  be  doubted  whether  a  militia 
thus  circumstonced  could  ever  be  conquered  by 
such  a  proportion  of  regular  troops.  Those  who 
are  best  acquainted  with  the  late  successful  re- 
sistance of  this  country  against  the  British  arms 
will  be  most  inclined  to  deny  the  possibility  of  it. 
Besides  the  advantage  of  being  armed,  whieh  the 
Americans  possess  over  the  people  of  almost 
every  other  nation,  the  existence  of  subordinate 
governments,  to  which  the  people  are  attached 
and  by  which  the  militia  officers  are  ap- 
pointed, forms  a  barrier  against  the  enterpri- 
ses ot  ambition,  more  insurmountable  than  a 
simple  government  of  any  form  can  admit  of. 
Notwithstanding  the  military  establishments  In 
the  several  kingdoms  of  Europe,  which  are  carried 
as  far  as  the  pubiic  resources  will  bear,  the  gov- 
ernments are  afraid  to  trust  the  people  with  arms. 
'And  it  is  not  certain,  that  with  this  aid  alone,  they 
would  not  be  able  to  shake  off  their  yokes.  Bat 
were  the  people  to  possess  the  additional  advant- 
ages of  local  government,  chosen  by  themselves, 
who  could  collect  the  national  will  and  direct  the 
national  force,  and  of  officers  appointed  out.of  the 
militia,  by  these  governments,  and  attached  both 
to  them  and  to  the  militia,  it  may  bo  t  funned  with 
the  greatest  assurance,  that  the  throne  of  every  ty- 
ranny in  Eu;ope  would  bo  speediy  overturned  ia 
spite  of  tho  legions  whieh  surround  it."  Thai 
wrote  Mr.  Madison.  Even  the  injustice  of  party 
never  denied  either  to  Mr  Madison  or  to  Mr.  Ham- 
ilton, great  talents,  ardent  patriotism,  Jionetty  of 
purpose,  a^d  purity  of  personal  character.  Can  it 
be  possible,  I  atk.  that  such  men  could  present  the 
arguments  and  the  views  which  I  have  quoted,  fc'* 
their  fellow-citiz;  ns,  to  induce  them  to  adopt  a 
form  of  government  which  committed  to  the  leg- 
islative department  the  power,  by  a  single  vote,  to 
compel  every  man  between  the  ag-s  of  eighteen 
and  forty  fir o  years,  to  bocome  a  regular  soldier, 
subject  to  the  order*  of  the  President  ?  It  is  not 
possible:  and  we  are  therefore  driven  to  the  con- 
clusion that  wh«n  those  Illustrious  men  contended 
that  the  General  Government,  which  was  charged 
by  the  Constitution  with  tho  common  efence, 
should  be  elothodwith  'the  indefinite  power  of 
raisin?  troops  ;"  and  when  they  said,  in  general 


13 


4«rms,  that  the  power  of  Congresa  "  to  raise  and 
support  armies"  should  be  without  any  limitation- 
they  only  meant  to  s*y  that  Congress  ought  not  t6 
be  controlled  by  any  limitation  in  the  COhstitu- 
tion  as  to  the  number  of  troops  they  might  raise  ; 
and  t'mt  they  ought  cottoba  limited  as  to  th« 
time  when  they  might  raise  armies,  but  that  they 
should  hare  the  power  toraise  armies,  and  t< 
p-trtthem,  in  rime  of  peace  as  well  as  after  a  de- 
claration of  war. 

In  the  '-"-st  quotation  which  1  have  made  Trcrm 
the  'IfithnutuM'r  of,the  Federalist, by  Mr.  M. 
he  assumes  that  an  expensive  military  os'.. 
ment  could  ouly  be  created  by  the  uniform  and 
systematic  pursuit  of  soaie fixed  plan  for  that  pur- 
pose ;  and  when  he  proposes  to  concede,  lor  the 
sake  of  the  argument,  all  that  the  Government 
could  do  by  way  of  accumulating  a  military  force 
for  the  project*  of  ambition,  he  li  aits  its  possible 
efforts  to  the  accumuUtion  of  n  force  of  twenty- 
five  or  thirty  thousand  men,  having  reference  to 
the  population  of  that  day  ;  which  force,  he  con- 
tends, could  not  cope  successfully  with  the  militia 
of  the  States.  Can  it  b  •  possible  that  a  statesman 
like  Mr.  M  idison  would  have  ventured  upon  such 
a  position  atd  such  an  argument,  if  it  could  have 
been  replied  to  him  that  the  Congress  could  voU 
a  hundred  thousand  men  Into  the  ranks  of  the  reg- 
ular army  whenever  they  pleased,  and  comnol 
them  to  serve  orle  treated  as  deserters  ;  and  that 
the  militia  men  of  the  States  could  be  compelled, 
in  their  character  of  citizens,  to  serve  in  the  army 
as  regular  soldiers  V  I  say  again, it  is  not  possible. 

1  havo  no  controversy  with  the  quotations  which 
are  made,  in  the  opinion  of  the  court,  from  Vattel . 
The  principles  announced  in  th?  passages  quoted 
.  are  sound.  But  they  have  application  only  where 
written  constitutions  have  not  imposed  limitations 
upon  sovereign  power,  at  variance  with  them,  or 
in  restraint  of  th.  m.  Vattel  wrote  his  justly  cel- 
ebrated work  on  the  law  of  cations,  and  was 
sleeping  in  his  grave,  some  years  before  the  De- 
claration of  American  Independence.  It  has 
been  our  boast  that  our  revolutionary  ancestors 
made  some  advance  in.the  principles  and  science 
of  government,  aud  kindled  again  the  vestal  fire 
on  the  altar  of  liberty,  which  had  been  smoulder- 
iug  under  the  ashes  of  two  thousand  years.  I  am 
not  prepared,  therefore,  to  ace  Jpt  Monsieur  Yattel 
as  a  valuable  authority  upon  questions  con- 
cerning the  powerofthe  government  of  the  TJ. 
fs,  or  of  the  Confeder.Le  .Stales. 

I  shall  noTv  proceed  to  enqiire  somewhat  more 
particularly  whether  the  power  which  is  granted 
to  the  Congress  of  the  Confederate  States  to  raise 
and  support  armies  is  without  any  limitation ,  and 
whether  or  not  Congress  is  left  to  the  exercise  of., 
an  unlimited  discretion  as  to  the  means  by  which 
it  may  be  carried  into  effect.  In  the  opinion  of 
the  Court^it  is  said  that  "in  determining  the  con- 
stitutionality of  a  law  passed  by  the  Confederate 
Government,  it  is  always  important  to  consider 
whether  the  act  in  question  is  done  in  the  exercise 
of  a  power  expressly  granted,  or  under  the  im- 
plied powerg  granted  by  the  18th  paragraph  of 
the  8th  section  of  the  1st  Article  of  the  Constitu- 
tion. If  it  is  the  first,  then  the  Confederate  Gov- 
ernment may  use  their  discretion  in  the  mode  and 
manner  of  its  exercise,  unless  it  is  limited  or  re- 
strained in  so  doing  by  some  other  express  pro- 
vision or  clear  and  necessary  implication,  and  the 
burthen  of  showing  this  is  upon  thoso  who  assert 
the  limitation.1'   The  Court  further  aays  that  "the 


authority  given,  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution 
the  expressly',  granted  powers,  was  not  intended 
merely  to  authorize  Congre3S  to  exercise  by  leg- 
islation the  previously  granted  powers.    And  its 
right,  to  do  ao  depends  in  no   manner  upon  thia 
clau&s,  but  it   is  itself  n  direct  grant  of  all   such 
liary  a^d  incidental  powers  aa  shall  be  ne- 
proper  to  carry  into   effect  the  pre- 
;.•  ranted  powers.    And  it  is  admitted  that 
rity  to  do  an  act  is  claimed  under  it, 
.  is  incumbent  upon  those  who  maintain  it   to 
i  iiow,  ni  t  merely  that  it  is  a  "necessary"  law,  but 
cessary  and  proper  one  for  carrying 
into  effect  the  cxpresaly  granted  power." 
The  mil  paragraph  of  the  8th  section  of  the  1st 
of  the  Constitution    of    the  Confederate 
-in  ihese  words:     "Congress  shall  have 
r  to  make  all  laws  which  shall  bo  necea- 
per  for  carrying  into  exeoution  the 
foregoing  powers,  and  all  other  powers  vestedby 
.ion  in  the  Government  of  the  Con- 
f.dera  e   States,  or  in  any  department  or  office 
"    The  language  is  precisely  the  same  aa 
he  last  clause  of  the  8th  section  of  the  lat 
of  the  Constitution  of  the  United  States, 
e  exception,  of  course,  of  the  style  of  tho 
Government. 

>lauae  of  the  Constitution  of  the  United 

has  been  much  discussed.  In  Mr.  Madison's 

,n  the  Virginia  .Resolutions,  of  l"98,itia 

ince  to  this  clause  :    "  The  plain  im- 

'  this  clause  is,  that  Congress  shall  have  all 

dental  or  lnstrumentaiT°wer3  necessary 

•  per  for  carrying  into    execution  all  the 

powers,  whether  they  be  vested    in  the 

■  ment  of  the  United  States  more  collectlve- 

:  the  several  departments  or  officers  there- 

s  not  a  grant  of  new  powers  to  Congress, 

'•claration  for  the  removal  of  all  uncertain  - 

the  means  of  carrying  into  execution  those 

Bierwise  granted  are  included  in  the  grant.— 

ver,  therefore,  a  question  arises  concern- 

con-titutionality  of  a  particular  power, 

,s,  whether  the    power  bo  ex- 

:  in  the  Constitution.    If  it  be,  the  question 

led.    If  it  be- not  expressed,  the  next  en- 

luat  be,  whether  it  is  properly  an  incident 

i  power,  and  necessary  to  its  execu- 

Ifit  be,  it  may  be  exercised  by  Congress. 

If  it  be  not,  Congress  cannot  exercise  it." 

Judge  Stbry  ha3  incorporated  this  language  into 
his  Commentaries  on  the. Constitution,  with  very 
sligat  alteration.  lie  says  the  clause  in  question 
V  neither  enlarges  any  power  specifically  granted, 
Bor  is  it  a  grant  of  any  new  power  to  Congress." 
Mr.  Monroe,  in  the  celebrated  paper  containing 
his  views  on  the  sabjectof  internal  improvements 
—which  accompanied  his  message  vetoing  the 
"  Act  for  the  preservation  and  repair  of  the  Cum- 
berland road,"  (May  4th,  1822)—  spoaking;  of  thia 
clause  of  the  Constitution  said  :  »•  I  have  always 
considered  this  power  as  granted  on  a  principle 
or  greater  caution,  to  secure  the  complete  execu- 
tion of  all  the  powers  which  had  been  vested  in 
the  general  Government.  It  contains  no  distinct 
and  specific  power,  as  every  other  grant  does, 
such  as  to  lay  and  collect  taxes,  &c.  My  impres- 
sion has  been  invariably  that  this  power  would 
havo  existed  substantially'  if  this  power  had  Lot 
been  made."  . 

Mr.  Calhoun,  in  his  discourse  on  the  Constitution 
arid  Government  of  the  ;United  States,  speaking  of 
this  clause,  says  :    "This  power  (meaning  the  power 


14 


to  pass  laws,  to  carry  Into  effect  th«  powers  expressly 
rranted)  comprehensive  as  it  Is,  Is  nevertheless  sub- 
ject to  two  Important  restrictions— one  is,  that  the 
law  must  be  necessary,  an  1  the  other,  that  it  raust  be 
proper.  To  understand  the  Import  of  the  former, 
rthat  is,  that  the  law  must  be  nessary)  it  must  be 
borne  In  mind,  that  no  power  can  execute  itsetf  — 
They  all  require  means,  and  the  agency  of  the  Gov- 
ernment to  apply  them.  The  means  themselves  may 
Indeed,  be  regarded  as  auxiliary  powers.  Of  these, 
some  are  so  Intimately  connected  with  the  principal 
power,  that,  without  the  aid  of  one  or  all  of  them,  it 
could  not  bo  carried  into  execution  ;  and  of  course, 
without  them,  the  power  itself  w  mid  be  nugatory.— 
Hence  they  are  "called  implied  powers ;  and  it  Is  to 
this  description  of  incidental  or  auxiliary  powers, 
that  Congress  is  restricted  in  passing  laws,  necessary 
to  carry  into  execution  the  powers  expressly  dele- 
gated." But  Mr.  Gdlhoun  continues :  "The  law 
mnstaW)  be  pioper  as  welU'as  gnecessary,  in  order 
g  it  within  its  competency.  To  understand 
the  true  import  of  the  term  in  this  connec 
tlon'U* Is  necessary  to  hear  in  mind,  that  even  the 
implied  poweis  themselves  are  subject  to  important 
I ons,  when  u?e  1  as  means  to  carry  powers  or 
f  _-hts  Into  execution.  Among  these,  the  most  pro- 
t  and  important  is,  that  they  must  b?  so  car- 
ried Into  execution  as  not  to  inure  others;  and  as 
conneql  d  subordinate  to  this,  that  where 

the  implied  powers  or  means  used,  come  in  conflict 
with  the  Implied  powers,  or  mean.?  u  e  I  by  another, 
in  the  execution  of  the  p  jwers  or  rights  vested  in  It, 
the  less  iraportant'sbouln  yield  to  the  more  import- 
ant, the  convenient  to  the  useful,  and  both  to  health 
and  safety  ;  becau3e  it  is  prsper  they  should  do  so." 
In  the  celebrated  case  of  McCulloch,  vs.  the  Start 
oi  Maryland.  (4th  Wheatoa)  Chief  flifetke  Marshall 
in  treating  of  tbeclause  in  question,"  savs  :  ■'We  ad- 
mit, as  all  must  admit,  that  the  powers  of  the  Gov- 
ernment are  limited,  uitt  thut  it.;,  jitnits  are  not  to  be  . 
transcended.    B;}t  we  thin!  ruction 

of  the  Constitution,  mu.st  allow  to' the  A' at ional  Le- 
gislature that  discretion  with  r6:-peci  to  the  means' 
oy  which  the  power  it  confers  -are  to  be  carried  into 
execution,  which  will  emb'e  that  body  to  perform 
the  high  dutiesiassigoed  to  it,  in  the  manner  most  be- 
neficial to  the  people.  Let  the  eud  be  legitimate^  let 
it   be  within  the  score  of  the  C  and  ail 

means    which  are  appropri  :• .   which   are   t  1  inly 
adapted  to  that  end,  which  err  rj,  tut 

consistent  with  the  letter  and  spibi*  op  ana  coksti* 
aniox.  are  constitutional." 

In  the  light  of  these  expositions,  I  think  it  safe  to 
say  that  there  can  be  no  shifting  of  the burthen  of 
arguments  upoa  questioi.  (he  powers  of 

the  Government,  u.-on  the  ground  of  a. 
between  express  and,  implied  power.-.  The  Govern- 
ment is  one  of  limited  powers,  and  whoever  asserts 
the  constitutionality  of  a  particular  power,  "must 
show  it.  Is  the  power  expressed  in  the  Constitu- 
tion ?  If  it  is,  the  question  is  decided.  If  it  is  not 
expressed,  then  it  must  be  shown  to  be  necessary  to 
the  execution  of  some  power  that  is  expressed,  and 
notonly  nectary,  but  proper  to  be  use  i  in  carrying 
into  execution  some  power  that  i<  expressed. 

The  majority  of  the  Court  say,  the  power  to  raise 
and  support  arniies  is  expressly  granted,  ■j.hic.of 
course,  is  t. o o  denied,  but  J  beg  leave  to  say.it  is  not 
to  the  purpose.  The  question  is  not  whether  or  not 
the  power  to  raise  and  support  armies,  is  expressly 
granted  ;  the  question  is,  whether  or  not  the  power 
to  raise  armies  by  conscription,  is  expressly  granted  F 
It  wil!.  of  course,  be  "conceded  that  the  Constitution 
contains  no  such  express  grant  of  power.  Then  the 
further  questions  arise,  is  conscription  one  of  the  Im- 
plied powers  ?  Is  it  a  means  necessary  to  be  used  in 
carrying  into  effect  the  power  to  lalse  armies?  is  it 
a  means  proper  to  be  used?  does  it  consist  with  the 
spirit  of  the  Oons»itutio  i  ?  is  it  not  a  means,  the  use 
of  which  will  conflict  with  the  reserved  rights  of  the 
states,  to  train  their  militia,  and  to  appoint  the  of- 
ficers of  themili'ia? 

In  considering  whether  a  law  is  necessary,  in  the 
sense  of  the  constitution,  to  carry  into  effect  an  ex- 


press power,  if  we  are  not  to  Jadopt  the  etrict  rul» 
laid  down  b\  Mr.  Calhoun,  towlt.  that  the  express 
power  would  be  nugatory  without  the  use  of  tuo 
means  proposed  by  the  law,  I  take  it  f  >r  granted  that 
we  will  not  on  the  other  hand,go  back  to  that  latitud* 
of  construction,  and  to  the  reasoning  by  which  the 
Federalists  of  17y8  claimed  for  the  congre.-sof  the  Uni- 
ted States,  the  power  to  exercise  a  censorship  over 
the  press,  as  a  means  necessary  and  proper  to  can  r 
into  effect  the  power  t>  suppress  insurrections.  We 
have  been  accutomed  to  rea  I,  with  the  interest  that 
attaches  to  the  drama,  the  history  of  t'aegr.  at  strug- 
gle which  elevated  Mr.  Jefferson  to  the  Presidency 
It  is  the  first  conspicuojas  landmark  lathe  history  of 
the^Goverument  of  the  United  States,  under  the 
Constitution.  Ithus  always  been  claimed  tl 
Republican  party  performed  a  patriotic  service,  in 
resisting  the  tendency  t  >  a  rapi  1  con-'olidUion  of 
P  vers  in  the  General  Government,  and  that  their  Il- 
lustrious leader  was  the  faithful  sentinel 
jja-.ger  to  the  Constitution,  and  met  it  with  a  noble 
devotion  to  the  cause  of  liberty.  And  ia  the  subse- 
quent history  of  t  ■  at ;  in  Mr.  Monroe's 
denial  of  th j  power  of  the  Government  to  establish  a 
Sysf?ui  of  i  t.emal  improvements  without  limita- 
tion ■  in  Gen.  JaCksos's  memorab'e  struggle  with  the 
Bank  of  the  United  In  every  step  which 
has  been  n  ale.  towards  a  strict  construction  of  the 
Con  s l  i  t  utlon ,  *  he  p  »o  pie  ,  u  ■  r  u :  1 1  ph  of 
sound  prim;  I 
stabi'ity  o-  I 
fore  a 

stitutlon,  which'iiiv  p  ivture 

from  these  principles  whicn  conducted 
the  United  iSlates    to  noeximpled  pro.-p  ii  y   and 
greatness,  and  to  preserve  w;iieh,  was  t.^e. avowed 
pnrp  seof  these  Cp  diaspVu- 

tionof  the  oldUuiv::,  and  the  e  ii  of  our 

?.r-  s  nt  Govf-rnpieht. 

It  cannot  be  contended  that  conscription  is  a 
means  necessary  to  carry  into  effect  the  power  to 
raise  armies.  Such  a  proposition,  besides  being 
contrary  to  reason,  would  find  its  contradictions 
in  history,  and  in  the  events  which  ate  transpiring 
before  our  eyes.  The  Government  of  the  Uuited 
States  has  always  kept  an  ar-rsy  on  foot,  maintained 
an  honorable  contest  with  Great  Britain  in  1810, 
and  planted  her  banners  on  the  walls  of  the  Capi- 
tol of  Mexico,  in  1P47,  but  has  never  ra:sed  troops 
by  conscription.'  We  have  se^n  gallant  armies 
take  the  field  at  the  call  of  th8se  Confederate 
States,  without  any  conscription.  We  are  told  that 
the  Government  of  the  United  States  is  prepared 
to  precipitate  uponus  not,  much  less  than  a  million 
of  men.  They  have  been  raided  without  any  con- 
scription. Conscription  cannot,  therefore,  be  a 
necessary  means  of  raising  armies.  And  it  would 
seem  that  the  fact  above  mentioned  ought  to  fur- 
nish a  sufficient  answer  to  the  position  which  is  as- 
sumed, that  if  the  Government  cannot  compel^the 
citizens  to  enter  the  regular  army,  then  the  power 
to  raise  an  army  is  wanting,  and  the  Government 
has  only  the  privilege  of  raising  armies.  It  would 
seem  that  a  privilege  which  enables  a  Govern- 
ment to  bring  a  million  of  men  into  the  field,  can 
only  be  a  misnomer  for  a  power  to  do  so.  The 
word  "privilege"  properly  signifies  an  exemption 
from  some  general  duty— an  immunity  from  some 
general  burthen  or  obligation— a  right  peculiar  to 
some  individual  or  body.  The  word  could  not 
with  propriety  be  substituted  for  the  word  power 
in  the  Constitution.  But  let  us  suppose  it  had  been 
used  instead  of  the  word  power.  After  the  criti- 
cism which  would  have  been  elicited  because  of 
the  use  of  an  improper  word.,  what  meaning  would 
necessarily  have  been  drawn  from  its  use  ?  "Con- 
gress shall  have  the  privilege*  of  laying  and  col- 
lecting taxe3,  duties,  imports  and  excises;"  "Con- 
gress Shall  have  the  privilege  of  borrowing  money 


li 


ob  the  eradtt  of  the  Confederate  State*/'  Would 
W.  not  bare  been  said  that  the  frainera  of  the  Con 
Ktitotlon  meant  to  eay  that  Congress  Bhould  hare 
the  power  to  do  these  things  ?  The  word  povtr  l» 
the  appropriate  word,  but  It  la  net  used  in  the 
sense  of  force.  We  speak  wilh  correctnes  of  the 
the  military  power  of  a  Government.  We  say, 
for  example,  the  Government  of  the  United  States 
has  not  the  power  to  conquer  the  people  of  the 
Confederate  States;  meaning  that  it  cannot  use 
the  necessary  force.  But  when  we  speak  of  the 
Legislative,  the  Executive,  the  Judicial  power  of 
a  Government,  there  ia  no  idea  of  force  connect- 
ed with  the  word.  It  is  true  that  tho  Executive 
Department  of  the  Government  may  sometimes 
«ge  force  in  carrying  into  execution  the  will  of  the 
Legislative  Department.  The  Executive  Depart- 
ment may  use  force  in  suppressing  insurrections, 
and  must  necesairily  use  itin  repelling  invasions. 
But  when  it  is  said  that  Congress  shall  have  pow- 
er to  constitute  tribunals  inferior  to  the  Supremo 
Court,  to  establish  uniform  1  .ws  of  naturaliz  ttion, 
and  uniform  laws  on  the  subject  of  bankruptcies, 
to  coin  money,  to  borrow  money,  and  (he  like, 
there  is  no  idea  of  force  connected  with  the  uso  of 
the  word  power.  It  cannot  be  denied  that  Con- 
gress may  raise  armies  by  accepting  the  acrvlces 
ol  those  who  may  voluntarily  enlist.  It  has  than 
the  power  to  do  this;  but  it  cannot  be  s»aid  that 
Congress  can  use  force,  or  require  tho  Executive 
Department  to  use  force  to  compel  a  citizen  volun- 
tarily to  enli6t,  because  this  would  be  sheer  non- 
eence.  The  use  of  tho  word,  then,  by  no  mean3 
carriea  with  it  the  implication  that  Congress  may 
employ  force  to  do  everj  thing  which  it  is  said  to 
have  the  power  to  do. 

For  the  purpose  of  testing  this  question  of  the 
powel  of  the  Government  to  compel  cilizena  to 
enter  the  regular  army,  let  us  examine  the  tcope 
of  another  of  the  express  powers,  raid  one  of  a 
kindred  nature  of  that  of  raising  armies.  The 
Constitution  says  :  "Congress  shall  have  power'' 
"  to  provide  and  maintain  a  Navy."  The  grant  of 
power,  so  far  as  the  language  employed  in  making 
the  grant  is  concerned,  is  without  any  limitation, 
'i  he  grant  of  power  to  raise  and  support  armies  is 
limited  by  the  provision  thai  "  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term 
than  two  years."  The  power 'to  provide  and 
maintain  a  navy''  ia  without  any  such  limitation. 
I  now  recur  onco  more  to  the  language  of  the  Fed- 
eralist, which  is  quoted  in  the  opinion  of  the  court. 
Is  the  power  of  raising  armies  and  equipping  fleets 
necessary  ?  This  is  involved  in  the  foregoing 
power  (meaning  the  power  to  declare  war).  It  ia 
involved  in  -the  power  of  self-defence.  But  was 
it  necessary  to  give  an  indefinite  power  of  raiding 
troops  as  well  as  of  equipping  fleets  ;  and  of  main- 
taining both  in  peace,  as  well  as  in  war  V"  Mr. 
Madison  insists  that  these  powers  were  necess  iry. 
Now,  I  ask  the  question,  has  the  Congre*s  of  the 
Confederate  S'ates  the  power, under  the  Constitu- 
tion,  to  compel  the  citizens  of  these  States,  be- 
tween the  ages  of  eighteen  and  forty-five  years, 
to  enter  the  naval  service,  to  become  seamen  »r 
marine s,  for  an  indefinite  period  of  time,  or  fur 
five  or  ten  years  ?  Who  will  answer  the  question 
in  the  affirmative  ?  Yet  the  power  tl  to  provide 
and  maintain  x  navy"  is  to  the  full  extent  as  broad 
and  unlimited  as  the  power  to  raiBe  and  support 
armies  :  and  the  indefinite  power  of  equipping 
fleets,  is  put,  by  the  author  of  the  41st  number  of 
the  Federalist,  onpr.cisely  the  same  footing  as 


the  indefinite  power  *f  raising  troops.  If  the  Br!  - 
ish  practice  of  Impressing  seamen  is  authorize* 
by  the  Constitution  of  the  Confederate  States  or  of 
the  United  States,  I  venture  the  assertion  that  the 
people  of  both  countries  are  ignorant  of  the  fact. 
And  if  it  is  admitted  that  the  Congress  of  the  Con- 
federate States  has  not  the  power  to  compel  cUl- 
sens  to  enter  the  naval  service,  I  should  be  glad 
to  be  furnished  with  a  reason  why  it  has  not,  by 
those  who  claim  that  it  has  the  power  to  compel 
citizens  to  enter  into  the  regular  army.  Take  the 
'.wo  grants  of  power,  and  how  can  you  draw  a  dis- 
tinction between  them '?  Congress  shall  have 
power  •'  to  raise  and  support  armies.''  Congress 
ahall  have  power  "to  provide  and  maintain  a 
navy."  It  is"  well  known  that  m  Fnnce  the  con- 
scription furnishes  seamen  and  marines,  as  well  as 
soldiers  for  the  regular  army.  If  our  government 
possesses  an  unlimited  control  over  "the  citizens 
for  purposes  of  defence,  then  it  baa  the  power  to 
assign  them  to  the  land  or  naval  service,  at  its 
pleasure. 

I  make  bold  to  say, 'haUhe  Government  of  the 
Confederate  States  possesses  no-power  to  com; 

s  to  enter  in'.o  its  naval  service;  and  for  the 
simple  reason  that  the  Governmer  t  is  one  of  lim- 
wers,  that  the  people  whoinatituted  it  were 
afro.-  people,  and  had  the  right  to  make  such  a 
go  ernmentas  they  pleased  to  make,  and  thut  they 
never  intended  to  invest  the  government  with  an 
unlimited  control  over  their  persons  for  the  pur- 

fosesof  war;    And  fur  the  s«me  reasons, -the  gov- 
t  baa  no  power  to  compel  the  citizens  of 
atcs  to  enter  the  regular  army.    The  truth  Is. 
e  are  limitations  upon  the,powers  of  the  gov- 
ernments of  the  United  States,  and  of  the  Goofed- 
ft  rate  States,  besides  those  which  are  expressed  in 
Co^siitutioua  of  each.    And  this  is  what  ia 
'  ftieant  by  the  spirit  of  the  Government. 
J  It  would  have  been  impossible  j  Li  the  formation 
of  c  Constitution  of  governmpnt  by  the  free  po 
'tile  of  several  independent  States,  having  for  its 
oip.il  object  tho  regulation  and  control  of  their 
ju  relations  and  interests,  to  have  specified 
Aie  powers  and  rights  which  they  intended  to  rc- 
■ervo  to  themselves.    All  that  could  be  done  was, 
/for  the  sake  Of  Caption,  to  declare  that  they  reserv- 
to  themselves  the  powers  which  were  not  dele- 
gated by  the  Constitution  to  the  General  Govern  - 
it.    When,  therefore,  we  c  jmo  to  enquire  what 
the  reserved  powers  are,  or,  in  other  words,  what 
are  the  limitations  upon  tho  delegated  powers,  we 
are  entering  a  wide  held  of  investigation,  and  one 
that  invites  \o  the  noblest  exercise  of  mind.    In 
I  determining  such  questions,  respect  must  be  paid 
to  all  the  circumstances  under  which  the  Constitu- 
tion was  established,  to  the  purposes  for  which  it 
was  established,  to  the  condition,  and  to  tho  inten- 
tions of  the  parties  who  established  it.    And  it  is 
never  to  be  inferred  that  a  delegated  power  is  ab- 
solutely without  limitation,  because  no  limitation 
is  expreeaed  in  the  Constitution,  nor  yet  becauso 
there  is  no  clear  implication  of  a  limitation  from 
auything  that  is  expressed.    Mr.  Calhoun  says  . 
"There  is  indeed  no  power  of  the  Government 
without  restriction  ;  not  even  that  which  is  called 
the  discretionary  power  of  CongreBs." 

The  Constitution  says  that  "che  President  shall  have 

power  bv,  and  with  the  advice  and   consent  of  the 

•  ■' Senate,  to  make  treaties,  provided  two-thir-is  of  the 

, .Senators  present  concur."    And  *n  another  Dlr.ce  it  is 

.  ■  said  that  "The  Constitution  and  the  laws  of  the  Cou- 

, -federate $jMes,  niade  in  pursuance  .ncreof;  and  a. 

treatieo  made,  or  which  shall  be  nude  under  the  au- 

'    thority  of  tjft  Conner  ,te.S:ates,>,lia!l  b*]the  supreme 


11 


law  of  ti.'j  l.tnr].;'    Itwll  be  teen  thU  ihn  power  to 
make  treaties  is  without  ar.y  express  limitation, yet 
there  musirb^  important  limitations  upon  the  treaty 
nuking'po'wer.    ]t  must  be  considered  with   lefer- 
<;•-  for  which   the  Govern- 
ne  of  111 i*   limitations  upon 
will  be  f  jund  to  aiise  by 
I  "i   provision; 
'.. 
ty  with  Ihi gland,  to  make 
ke  war 
and  one  provision  of  the 
Const! 
of  an:-  nlditb?  compete  t  fort] 

•  a  treaty,  ceding  that  oor- 

she  consent 
people  '   there  Is  any  Iprohib'- 

in  the  conau 
i  ion  can.  be   clearly 
loil  lit  res  el.  lut  because 

;  e  pur- 
s'.ituted,  and 
ie  iple  ol  Texa*|n<  ver  intended  to  clothe 
veronient  with  any  such  power.    Other  ex- 
amples m'ght  be  given,  were  it  necessary,  of  limita- 
tions upon  the  pow.  rs  of  Government,  which  are  not 
exDreeseu  in  the  constitution;  but    which  spring  ne- 
cessarily, tVoni  the  reserved  fights  ot  the  people .— 
The  substance  of  the  whole  is,  that  the  powers  of 
the  government  must  be  so  construed  as  to  trench  as 
littL-as  possible  upon    the  liberty  of  the  citizen; 
and  so  as  to  interfere  ii  u>e   least  possible  degree 
with!  concerns  of  the  people,  .the regu- 

lation of  which  is  reserved  to  the  States  respective- 
ly. 

]  t  may  be  argued ,  and  it  may  be  true,  that  to  deny 
to  thegenr-rilgovernmenl  the  right  to  compel  cit'- 
zens  to  enlist  hi  the  regular  army,  and  to  contine  its 
power  to  make  war  to  the  employment  of  the, militia 
and  of  such  regular  force- ts  may  be  rated  by  the 
voluntary  enlistment  of  the  people,  will  leave  the 
government  less  alve  to  wage  war  with  vigor,  than 
it  would  be  i  the  power  contended  for 

by  the  advocates  of  conscription. 

The  plain  answer  to  all  such  arguments  and 
complaints  is,ihatihe  Government  was  not  insti- 
tuted with  a  view  to  the  greatest  possible  efficien- 
cyinwar.  It  was  not  the  purpose  of  the fpeople 
in  its  establishment  to  foster  a  military  spirit,  or 
to  tempt  their  rulers  to  undertake  those  enter- 
prises so  attractive  to  vulgar  ambition,  by  furnish- 
ing the  means  for  their  easy  accomplishment. 
They"'  their  purpose  to  be  to  establish 

justice,  to  insuro  domestic  tranquility,  and  to  se- 
cure the  blessings  of  liberty  to  themselves  and 
their  posterity.  I  am  of  opinion  that  they  never 
intended  to  arm  a  Government  instituted  for  such 
purposes,  with  the  tremendous  military  power 
which  is  claimed  by  the  act  of  conscription.  I 
•do  not  believe  those  acts  to  bo  necessary  to  carry 
into  effect  Ihe  war  power  with  wlwch  the  Govern- 
ment has  been  clothed.  I  do  not  believe  them  to 
be  proper,  because  not  necessary,  and  not  con- 
sistent with  the  spirit  of  the  Constitution.  More 
than  this,  if  more  be  needed  to  condemn  them,  I 
believe  them  to  be  directly  in  conflict  with  the  re- 
served rights  of  the  States  oyer  the  militia  ;  or, 
-what  is  perhaps  the  same  thing  substantislly,  the 
reserved  rights  of  the  people  to  do  military  ser- 
vice as  militia,  when  military  service  is  required 
of  them. 

Before  proceeding,  however,  to  the  examina- 
tion of  the  provisions  of  the  Constitution,  respect- 
ing the  militia,  I  will  briefly  notice,  as  matter  of 
historical  interest,  and  also  as  bearing  somewhat 
upon  the  question  under  discussion, the  fact  which 
is  alluded  to  in  the  opinion  of  the  Court,  that  ihe 
power  to  compel  citizens  to  do  military  serrlce  in 


the  regular    array  was  claimed  for  the  Govern- 
ment  of  the  United  States  by  General  K,nox.  dur- 
ing General  Washington's  administration,  and  by 
Mr.  Monroe  during  Mr.  Madison's  administration. 
General  Kncx  was  Secretary  of  War,  and  a  soldier 
by  profession.    The  plan  which  he  proposed  had 
the   approbation   of    General    Washington,  and 
would  have  been  little  burdensome  in  its  opera- 
tion.   There  had  but  a  short  time  before  1 
insurrection  in  Massachusetts,  and  there' 
of  the.  Government  with  Franco  were  fa 
satisfactory  ;  Lut  the  plan  was  rejected, 
lieu  ot  It  the  militia  Jaw  of . 1:92, wh^ch,  with  slight 
has  continued  in  force  ever    since, 
.was  enacted. 

In  1814  Mr.  Monroe  was  Secretary  of  War  'and 
also  Secretary  of  State.  The  war  with  Great  Brit- 
tain  was  assuming  the  most  serious  aspect.  The 
temporary  cessation  of  hostilities  in  Europe,  con- 
sequent upon  the  first  expulsion  of  Napoleon,  left 
England  at  liberty  to  employ  an  .immense  force 
against  the  United  States.  England;  threatened 
a  war  of  destruction. 

Mr.  Monroe  recommended  to  Congress  a  p'an' 
for  the  increase  of  the  army,  in  which  ho  asserted 
the  right  of  the  government  to  compel  the  citi- 
zens to  do  military  service  in  the  regular  array. 
His  plan  was  substantially  as  follows  : 

That  the  free  male  population  of  the  United 
States,  between  ihe  ages  of  eighteen  and  forty-five 
years  should  be  "formed  into  classes  of  one  hun- 
dred each,  and  that  each  class  should  furnish  four 
iaen  for  the  war,  and  replace  them  in  the  event 
of  casualty  ;.  that  the  classification  should  be 
formed  wi  ha  view  to  the  equal  distribution  of 
property  among  the  classes  ;  that  if  any  any  class 
failed  to  furnish  the  men  required  of  them,  within 
the  time  specified,  they  should  bo  raised  by  draft 
on  the  whole  class,  and  that  any  person  thus  draft- 
ed should  be  allowed  to  furnish  a  substitute ;  that 
the  bounty  in  land  which  the  government  was  of- 
f-ring should  be  allowed  to  each  recruit,  and  the 
bounty  in  money,  which  the  government  was  pay- 
ing, should  be  paid  to  each  draft  or  recruit  by  the 
class  to  which  he  belonged,  according  to  the  value 
of  the  property  which  the  persons  composing  the 
respectively  possessed.  Mr.  Monroe  proposed 
to  carry  this  plau  into  effect  by  committing  the 
execution  of  it  to  the  county  courts  throughout 
nited  States,  or  by  relying  on  the  militia 
•ers  in  each  county,  or  by  appointing  particu- 
lar persons  in  each  county  for  the  purpose.  This 
plan  was  denounced  as  a  French  conscription, 
and  was  rejected.  While  it  was  under  considera- 
tion, John  Randolph,  of  Roanoke,  addressed  a 
public  letter  to  a  distinguished  citizen  of  Massa- 
•  chusetts,  in  relation  to  the  position  of  hostility  to 
.  the  war  which  that  State  had  nssumod.  In  elo- 
quent terms  and  in  a  patriotic  spirit,  he  urged 
upon  the  people  of  Massachusetts  fidelity  to  the 
Union," and  a  proper  support  of  the  government. 
In  the  conclusion  of  the  letter,  after  speaking  of 
the  great  increase  of  the  army,  he  says,  "If,  under 
such  circumstances,  you  ask  me  what  you  are  to 
do,  should  a  conscription  of  the  model  ol  Bona- 
parte be  attempted,  I  will  refer  you  to  its  reputed 
projector,  Col.  Monroe.  Ask  him  what  he  would 
have  done  whilst  Governor  of  Virginia  and  pre- 
paring to  resist  Federal  usurpation,  had  such  an 
attempt  been  made  by  Mr.  Adams  and  his  minis- 
ters, especially  in  1800.  He  can  give  the  answer." 

Mr.  Monroe  was  Governor  of  Virginia  in  the 
year  1800,  and  ii  is  known  thai  the  State,  in  the 
language  ef  Mr.  Randolph,  "was  preparing  it 


17 


resist  Federal  usurpation."  I  can  only  under* 
stand  M  •.  Randolph  as  meaning  lo  say,  that  he 
would  expect  the  Siateof  Massachusetts  lo  resist, 
if  a  conscription  was  I'lteropted.  3dr.  Monroe 
was  a  m  n  of  known  patriotism,  of  great  eleva- 
tion of  character,  of  revolutionary  services.  He 
had  home  himself  »s  a  galla-l  soldier  on  many 
fields—  Harlem  Heights  and  White  Plains,  Bran- 
dywine,  Germantown  and  Mo,  m  mh.  11*  had 
led  the  vanguard  with  conspicuous  gallantr*.  ,  at 
Trenton,  and  had  received  tiere  a  grarious 
wound.  But  w«  are  told  hat  his  proposal  of  a 
consciption,  as  it  was  calif  d,  was  i  elteved  by 
himself  to  hav*  damaged  his  popularity  to  such  a 
degree  thai  he  determined  net  to  become  a  can- 
didate for  the  Preeidoi  c  ,  8s  successor  to  Mr. 
Madison,  and  on  y abandoned  his  resolution  be- 
cause of  the  speedy  close  of  the  war,  and  a  re- 
turn of  toe  people  to  a  better  temper.  Whin  it  is 
remembered  hit  at  the  time  Mr.  Monroe  proposed 
his  plan  lor  an  increase  or  iho  army  the  Gov,  r  - 
mentor  the  United  States  was  paying  to  every 
soldi  r  who  enlisted  the  enormous  b  uufy  of 
one  huudred  and  twenty-five  dollars,  b-sl-es  a 
libera'  bounty  in  land,  I  think  the  rejection  of 
the  principle  of  conscription,  in  the  mild  form  in 
which  it  was  proposed,  ought  to  be  regarded  aia 
somewhat  weighty  exprewion  of  the  sense  of  the 
nation,  or  to  say  the  toast,  that  no  argument  or 
influence  iu  favor  of  the  constitution  liiy  of  tue 
principle  can   be  d  awn  from  all  the  facts. 

I  now  p  ocetd  to  notice  verv  briefly  the  consti- 
tutional provisions  on  the  subject  ot  the  militia. 
It  is  said  in  the  C  >  stitution,  "'Congress  sh».ll 
have  the  power  to  provide  lor  calling  to  th  the 
militia  to  execute  the  laws  of  the  Confederate] 
St.les.  suppress  insurrections,  and  rep*il  inva- 
sions." Again,  it  is  said,  "Congress  snail  have 
power  to  provide  for  organizing  armng,  ai.d 
discipling  the  miiitia,  and  for  governinf  such 
part  of  thfm  as  may  beemplojed  in  tbeserviee  of 
the  Conl'e  Urate  Mutes,  reserving  to  the  St.ies 
respectively  the  appointm  ut  of  the  officers  and 
the.  authority  of  training  the  militia  according  lo 
the  discipl  nj prescribed  by  Congress."  Another 
provision  ofth:  Constitution ,  11  to  the  following 
effect:  "A  well  regulated  militia  being  necessary 
to  ttte  security  of  a  free  State,  the  right  of  tbe 
people  to  keep  and  bear  arms  shall  "not  be  in- 
fringed." This  latter  provision  was  one  of  the 
ameudra  ■  nts  to  the  Constilu  tii  n  of  the  United 
States,  proposed  by  Congress  and  ratifi-  d  by  the 
States,  for  the  purpose  of  meeting  the  ohjec  ioat 
that  were  made  to  the  Constitution  as  it  came 
from  the  hands  o' the  Convention,  on  the  ground 
that  the  rights  of  the  fjevple  were  not  sufficiently 
secured  by  it. 

The  clauses  which  give  to  Co  rress  the  pow;r  ts 
provide,  for  i  al  ihg  fo.  iu  ti,e  mi  it  a,  and  tor  org  n- 
rains*,  arming  and  discirlig  them,  are  p-eci^iy  the 
us  tn j  econtained  in  the  Constitution  of  the 
Ui  ited  States.  When  the  su:  ject  of  die  militia  w«3 
u*.dei  disc jfsion  In  ths  Federal  CoBTenti  n  whleja 
framed  t  ie  Coustit  ition  of  tbs  United  State-,  a  Ion? 
and  interesting  deb^e  transpired,  with  w  i.ii  th> 
students  of  our  poiiicdl  h  sto  y  <  re  fanJiitr,  and 
which  ne  d  not  be ,qubi«»d  extensively .  it  wa>  pro- 
po>po  by  Mr.  Sherman  to  .-t  Ike  out'the  da'i-e  re- 
serving to  ilv  S  at<s  the  riRhl  to  tr  it  th  -  m  'i'ia. 
Mr.  i.l  swortb  remark  d  that  th  >  o  Jeetlou  w-v  Id  tp- 
piy  a>-  weli  to  the  re  erv.idm  to  the  S'a  *h  i  f  ihe  ao- 
pointment  of  (fficers,  and  doubted  thepropriety 
of  sriklog  outeithnr.  Mr. Kin.' said  thatby  or- 
ganizing the  committee  meant  proportioning  the 
officers  and  men  ;  by  armivg, specifying  the  kind 


size,  and   calibre  of  arms;  and  by   dinrfpl 
prescribing  the  manual,  exercise,  evolutioi 

Mr  Gerry  «aid,  the  power  in  the  United  Mates, 
as  explained  by  Mr.  K;ne,  would  make  the  State* 
dpi  -sergeant*.  He  had  as  lief  let  the  citizens  oi' 
M  is.«achu«ett8  be  dis  nnn  1  as  to  t-ike  'he  comnr-nd 
fipom  the  States,  and  subject  them  to  the  general 
ure.  It  would  he  regarded  as  a  system  of 
despotism. 

In   the   prog-ess    of  th*  debate,    Mr.  Madison 
mov  d  to  amend  the  clmse    relating  to   tbe  ap 
po  ntnient  of  officers.  i'S  follows:    '*  K.  serving  te 
the  S latest  respectively,  the  appointment  of  the 

officers,  under  the  rank  tf  gtM  alttjjicrs  "  Mr 
Sherman  fcbusi  ere-'  ihis  as  absolutely  inulmissi- 
ble.  He  said  that  if  the  poop!-  should  be  so  far 
asleep  as  to  all  >w  tho  most  influential  officers  of. 
the  militia  to  be  appoli  ted  by  Iht  g-neral  govern 
ment,  t  very  man  of  discernment  would  rouse,  ihem 
by  sounding  ihe  alarm  to  them.  Mr  dory  said., 
Let  us  at  once  destroy  the  State  G  tvernraents.beve 
:.n  Executive  for  lib,  or  tiered  itary,  and  a  p  oper 
Seinie.  Then  there  would  be  some  consistency 
in  giving  full  powers  to  the  General  Government, 
b  it  as  h  B  ates  were  i  ot  to  be  abol  shed,  he  won 
dered  atthe  at  erupts  that  were  made  to  yive  pow 
ers  incousis  ent  with  ;he<r  existence.  He  wa*  ueC 
the  convention  against  poshing  the  experimen 
too  fkt.  Mr.  Madison  s-id:  "As  the  treat  dan 
ger  is  that  of  disunion  of  the  States,  't  is  uuceasi 
ry  to  guard  against  U by  giving  sufficient  powerf 
to  the  commotijijoverniuent  ;  and  as  ihe.  greatest 
dinger  to  liberty  is  frourslarge  standing  armies,  it. 
is  best  to  prevent  them  by  an  effectual  pro 
forgoo.i   militia." 

Mr.  Madwio's  amendment  was  rejected  by  & 
vote  of  eigh'  States  to  three,  or  of  nine  to  two,  it 
is  not  certain  which. 

On  the  question  ti  azree to  "the  reserving  to 
the  Stales  the  appointment  of  the  officers."  it  wag 
agreed  t  >  without  a  dissent  ng  vote  I  think  this 
statement  of  th  i  debate  (and  all  contemporaneous 
expositions)  shows  most  conclusively  that  the  fra- 
niers  of  the  Constitution  of  the  United  States  in- 
tended  to  reserve  to  the  States  such  a  control  ovei 
the  militH  as  tfould  make  the  States  secure  agains' 
t'Je  encroachments  ot  the  general  government, 
and  as  would  enable  the  people  to  maintain  theit 
liberties.  And  I  consider  the  proposition  which 
asserts  a  di.tinctioa  between  tue  cit  zeu  and  the 
militia-man,  as  too  shallow  a  sophism  to  require 
the  use  ol  argument  to  expose  it. 

The  militiaiethe  militia  of  the  States  respective- 
ly, and  not  of  the  Confederate  S  ates,  or  of  tne 
Ucited  States.  This  is  clear  irom  the  Constitutiot 
of  each.  "  Tho  President  shall  be  Commauderin 
Chief  of  the  Army  and  Navy  of  the  Con  ederate 
States,  nd  of  the  mitiiiv  of  the  several  States, 
when  nail  d  into  the  ac  ual  service  of  the  Conted 
trate  States."  When  the  militia  are  called  into 
the  service  of  tbe  general  government,  they  be- 
come national  miliua  alter  th  y  a-e  musterdat 
the  place  of  rendezvous  designated  by  the  propet 
authority,  and  not  until  then,  as  was  decided  by 
the  Supreme  Court  of  the  Uni  ed  States,  in  the  case 
of  Houston  vs.  Moore.  5th  Wheaton.  The  Su- 
preme Court  of  the  United  States  also  decided  ir 
the  case  of  Martin  vs.  iMoit,  12th  Wheaton.  that  i\ 
belongs  exclusively  to  the  Presidentto  judge  whet 
the  exigency  his  arisen,  in  which  he  has  author 
ity,  under  the  Constitution  and  laws,  to  dll  fortb 
the  militia,  and  that  his  decision  is  conclusive  up- 
on all  other  persons.    My  views,  then,  of  the  true 


18 


power  of  the  general  government  are  the.=  e  :  Con- 
grrs^  may  raise  regular  armies  by  '.he  voluntary 
enlistment  of  the  citizens  :  the  States  have  con- 
Ben  led  to  this,  and  tins  cannot,  therefore,  without 
it  violation  of  their  constitutional  obiiga  ions,  pro. 
hibit  the  citiz  -n  from  voluntarily  eniisliiiK  in  tha 
regular  i  rmy  The-Cougreas  may  provide  for  call- 
ing nut  the  militia  to  e'xei  lite  the  1  iws,  t  <  suppress 
insuTrectioi  8,  and  to  repel  i    v    ■  "  ;i   .and  uns  au- 

th   riz'-  the Preaideut t  >dec Alien  the  exigency 

htttoferisen.  The  Pr«*i<4cB,'1  ma)  n  i  out  the  militia 
by  r  qunOtions  upon  the  -G  >\  •  rn  id  of  the  Sta  es, 
who-.-  duty  it  would  tie'  to  cause  the  c  1  to  bo 
I  ;  o-  perhaps  the  Piesid  nt  mi  ht  transmit 
his  orders  directly  to  tha  proper  officers  of  the 
in  lii'H.  m  ihe  lespeciive  State*-. 

T h  •  m.'i'i  i  m  j  be  drafted  into  the  servile  un- 
der  thfi  pr  ptjr  omci-ns,  and  .bey  may  l>  •  punish- 
ed il  hey  reiuse  lo  Obey  the  dr  It.  They  my  be 
kept  iu  servtoe  as  long  as  the  naceasit  «s  ofthe 
*ase  to  ty  rfeqair  .  and  uu  ler  snob  systrrn  of  disci, 
pli  e  as  m:i>  beprovid  m!  hy  Uw  .  EachtUate  may 
exempt  from  nidi  ia.  duty  all  Buoh  persons  as  the 
Stave  ma  deem  neo  esary  to  itsown  gover.  went; 
and  the  right  to  exempt  LB  in  the  State,  and  is  not 
a  matter  of  grace  oa  the  part  of  the  general  gov- 
ernment. 

This^qe-stfoto  of  the  rightof  exemption  wasdis- 
cussed  who;  the  Congress  Of  the  Unit  d  Stales 
fi  -:  provided  f  r  tli-;  or-;  un/.ition  of  tha  militia, 
and  I  un  i  r stand  the  act  of  17H2  to  recogniz/3  the 
principle  (  n  l>uo  edly  corraot)  that  the. right  la 
in  I'm  State ;  fo«  that  ,-.ct  i  xempt  the  olfi;e,rs  and 
c  rtiin  employees  of  the  United  Statj-s,  and  also 
tkull  pers  us  \v  :o  now  are,  or  may  tiereaf  or  bo 
ex  muted  bj  th  l  law  sot  th-  respective  Suuos.'' 

Such  w  the  war  i  o  ver  of  the.  general  g  vern- 
nient.  Itis  the?  pbr,e'r  which  those  who  framed 
the  gover  meut  thought  pro|)er  lo  commit  lo  it, 
and    t  is  enough  lor  every  po-^iole  emergency. 

These  a  e  my  vP-ws  upon  this  .Teat  question. 
Though  they  are- ihe  re-ult  of  mich  reii-'Cion, 
they  I  ave  been  sdmfeWhat  hastily  expressed,  and 
I  am  s  u  i  le  that  th'ev  1-c'c  order  and  condensa- 
tion. 1  has  e  s!  ted  them  under  a  prolound  con- 
vi 10.11  ,  hat  I  am  nol  equal  to  the  great  argument. 

I  feel,  al  the  same  tim  •,  a,  conviction  as  profound, 
t'o  t  ii  republican  go>  fern  men  if  and  civil  liberty 
survive,  the   great  struggle  iu  which   we  are  row 

I I  gi-  imI,  Wh  ch  I  do  not  permit  myself  to  doubt, 
B  me  Marshall  or  dam  lie  d  will  make  tin  argu- 
rffent  uh  eh  will  cons-go  the  acts  of  eo  sori|rtion 
Which  have  been  under  diteu -si  .n,  to  the  uoiver- 
pal  obloquy  wveh  they  he-erve.  I  shall  not, 
therefore,  Indulge  in  any  vain  regret  that  1  have 
not  the  powers  i  ecers.try  to  setth  s  momentous 
ques'ioti  in  aclSM  light,  but  shall  content  m  self 
with  the  consciousness  of  having  performed  my 
duly,  in  my  place,  and  according  to  my   abilities. 

JAMES  H.  BULL. 

It  will  be  observed  that  on  the  first  page  of  ths 
fori  going  opinion  I  use  the  following  language: 
"  A*  it  a  pourp  how.  ver.  from  the  record,  that 
the  Thie' Jusrti  e.  up  m  -..he  original  heat  ing,  de- 
clared that,  '  His  mind  was  made  up  as  to  the 
constitutionality  of  Martial  Law  ;'  from  which  ex- 
pression I  uiit5ersti.ua  that  be  meant  to  express 
pinion  that  tuar.ial  law,  as  it  existed  in  the 
count}  of  Travis,  at  ihe  time  of  the  rein  rn  ofthe 
w  it  in  this  case,  might  be  declared  and  enforced, 
in  conformity  with  the  Coiiflitufion  of  the  Con- 
federate States  ;  that  it  may  not  be  supposed  that 


I  entertain  a  similar  opinion,  I  take  leave  to  gay, 
&c." 

My  attention  has  been  called  to  thi.«  language, 
nod  it  has  been  suggested  to  me  that  it  might  bt 
construed  to  me  initial  1  understand  Chief  Jus- 
tice W  heeler  to  express  Ihe  opinion  that  marlisl 
law  was  declared  in  Texas,  in  conformity  *'Ui 
t  e  i  oo-tiuitioti  of  the  C  n  federate  States.  The 
language  used  by  me  wVs  not  intended  to  bear 
any  such  c  instruction,  nor  do  1  think  any  such 
construction  can  properly  be  given  to  it.  I  u'l- 
der  to  d  the  judgment  of  the  Chief  Justice  n  on 
tiie  .  rigin'al  hearing  to  proceed  U|)'-n  iiitormatiou 
communicated  to  him,  that  the  Congress  of  the 
Cooled  rate  utiles  uad  pasaed  an  act  autaorizinsf 
tiie  President  to  declare  martial  law  in  such 
places  and  districts  of  the  Confederacy  as  ho 
might  think  proper,  an  1  upon  the  presumption 
thai  the  mi  itary  cominan('er  ace  i  under  the  or- 
der of  ihe  President  in  deel  -.ring  martial  law  iu 
Texas. 

I  u*ed  the  expr  ssion  "Martial  Law  ssitexistsd 
in  in-.-  county  m  Travis,  at  the  time  of  the  return 
ofthe  writ  in  this  case,''  by  way  of  designating 
the  kind  of  martial  law  to  which  I  had  reference, 
when  1  denied  the  power  in  any  department  of 
the  government  to  declare  it,  because  several 
different  ideas  prevailed  in  reference  to  wlut 
maitial  law  is,  and  what  kind  of  martial  law  the 
government  has  the  power  lo  declare.  I  would 
not,  of  course,  deny  the  power  of  Congress  to 
Suspend  tne  writ  of  habeas  corpus,  when  the 
state  of  case  contemplated  by1  the  Constitution  ex- 
ists; aud  if  the  mere  ettspenslon  of  tha  writ  of 
habeas  corpus,  without  any  further  interference 
with  citizens,  or  wiih  the  cuatomary  civil  admin- 
istration, leaves  the  district  iu  which  the  writ  li 
so  suspended,  under  martial  law,  thus  making  the 
suspension  of  the  writ,  and  the  declaration  of 
martial  I  .w  to  be  synonymous  things,  as  some 
have  contended,  I  would  not  deny  tha  power  of 
Congress  to  declare  this  kind  of  martial  law , 
tti'.ugh  I  misht  suppose  such  a  state  of  things  u 
be  improperly  d-jcriuei  as  a  declaration  of  mar- 
tial law. 

It  was  my  intention  (o  express  ray  dissent  from 
the  'pi  6  position  that  the  power  exisls  in  any  de- 
partment of  Ihe  Government  of  the  Confederate 
States,  or  in  any  ol  ils  officers,  under  any  circum- 
stances, to  declare  and  enforce  that  kind  of  mar- 
shal law  which  i  xi^ied,  during  the  past  summer 
iuthe  county  of  Travis. 

1  tlii  k  it  due  to  mysell  further  to  say,  (a^  my  opln 
io  i  i-i  to  bo  published  in  a  newsi  aper,  unaccompan- 
ied, peril 'i>s,  by  the  recordJf'tlpit  in  the  reference 
w  Mc  i  I  made  i  i  my  opinion  to  ti  e  ruling  ofthe  Ch  ef 
Justice  uo.m  the  original  hearing,  1  quoted  the  la u 
guage  of  a  bill  o!  exceptions,  signed  by  him-elf,  am! 
constituting  a  part  of  the  record.  1  le  it  m;.  sell  at,  lib- 
erty to  do  so.  and  to  express  my  own  Opinion  eopecrp- 
irg jmaitial  l»w,  bec^u  e  Hie  power  oi  the  Guvi'm- 
me-.-it  to  estaMish  aim  ^:j force  martial  law,  had  peen 
a  serted  by  ti  e  Chief  Justice  upon  the  original  hear- 
ing, had  b  eh  made  a  culestibn  upon  the  appeal,  and 
hail  been  fully  argued  by  counsi  1  at  the  ear  ofthe  Su- 
premo Court,  it  is  true  thut  no  expression  of  opinio!. 
on  tee  subject  of  marti  il  law  w-as  necessary  to  the 
decision  ot  the  c ise  upon  the  appeal,  and  ia  th«  omn- 
io.iof  toe  majority  of  the  Court,  delivered  by  Mr. 
Justice  Moore,  there  is  no  expression  of  oninion  on 
the  mi!  j  ct.  But,  I  did  net  teel  precluded  from  ex- 
p.e.-si.g  niyown  opinion,  more  especially  as  I  was 
writing  a  ttj-enting  opinion,  and  as  what.  I  said  wa-t 
chargeable  to  myself,  and  Lot  to  the  Court.  I  heard 
the  subject  of  martial  law  fully  argued  by  iearned  (tad 


19 


able  counsel;  I  had  studied  the  subject  for  mvself, 
and  had  an  t  v^d  at  a  conclusion  which  was  not  likely 
to  be  changed.  Expi-e.^ing  my  opinion  under  such 
Circumstances,  although  the  question  wjs  not  neces- 
ary  t  >  the  decision  of  Che  ca>e ,  I  did  nothing  more 
th  n  has  been  often  done  by  cou'  ts  and  Julge*  of  the 
hiuhest  reputaM  >'i,  at,d  notbli  g  more  thin  wa-*  do  e 
by  the  Cliief  Ju.-,tke  on  the  original  hearing  iu  the 
prefer  t  c  se. 

If  It  be  supposed  by  any  one  that  I  intended  any 
disrespect  to  the  Chief  Justice  by  the  manner  lu 
which  I  expressed  myself,  I  u'terly  disclaim  it ; 
and  I  must  declao  my-elfata  loss  to  perceive  how 
a  quotation  of  tho  record  and  a  statement  of  my 
understanding  of  it,  uiadv  for  the  purpose  of  lay- 
ing a  basis  for  tie  expr  gsion  of  my  opinion  upon 
the  subject  matter,  can  be  construed  into  animad- 
ver-iou  upon  the  opinion  or  ruling  of  the  Chief 
Justice,  or  can  be  considered  an  improper  or  un- 
warrantable allusion  to  hjs  opinion.  The  case  was 
one  out  of  the  ordinary  routine  of  Judicial  pro- 


ceedings. 

Tho  questions  involred  and  discussed  were  or 
the  greatest  public  interest,  filled  the  minds  of 
the  whole  country,  and  had  never  before  been 
presented  to  the  Court.  My  position,  as  dissenting 
from  the  majorUy  of  the  Court  upon  the  main  ques- 
tion, was  one  of  some  responsibility,  so  far  as  my 
reputation  as  a  Uw>er  was  concerned.  Under 
these  circumstances  I  used  plain  language.  I  was 
more  solicitous  about  what  I  said  than  I  was  about 
the  manner  of  spying  it.  I  wrote  under  the  con- 
viction that  I  would  never,  probably,  be  again 
called  upon  during  my  judicial  career,  to  write 
upon  questions  of  such  vast  importance  to  the 
public. 

I  again  disclaim— although  I  consider  all  dis- 
claimer unnecessary— any  intention  to  animad- 
vert upon  the  opinions  Of  any  one. 

JAMES  H.BELL. 


Hollinger  Corp, 
PH8.5 


